Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge. Super. Ct. No. MCR030034
R. Shanti Brien, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna, and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
STATEMENT OF THE CASE
On June 5, 2008, the Madera County District Attorney filed a first amended information in superior court charging appellant Loret Bilkiss as follows: count 1--felony attempted vandalism (Pen. Code, §§ 594, subd. (a), 664); count 2--misdemeanor resistance of a peace officer (§ 148, subd. (a)(1)); count 3--misdemeanor throwing of substances at a vehicle (§ Veh. Code, § 23110, subd. (a)); counts 4 through 6--misdemeanor contempt of court by disobeying a three-year restraining order (§ 166, subd. (a)(4)). On the same date, appellant was arraigned and pleaded not guilty to all of the counts.
All further statutory citations are to the Penal Code unless otherwise indicated.
On August 19, 2008, the court denied appellant’s motion to dismiss count 1 of the information because of destruction of a photographic lineup and an alleged “subsequent tainted in-court identification.”
On October 8, 2008, jury trial commenced. On that same date, the court granted appellant’s motion to reduce count 1 to a misdemeanor but denied her motion to dismiss counts 4 through 6 for insufficiency of evidence (§ 1118.1).
On October 9, 2008, the jury returned verdicts finding appellant guilty as charged.
On October 31, 2008, the court sentenced appellant to three years of formal probation with 90 days in custody under house arrest. The court imposed a $100 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.44), imposed a $380 fine/assessment (§ 672), and awarded 24 days of custody credits.
On November 12, 2008, appellant filed a notice of appeal from the judgment of conviction (§ 1466, subd. (2)(A)). On November 19, 2008, appellant filed a notice of appeal based on the sentence or other matters occurring after the plea (Cal. Rules of Court, rule 8.304).
Despite the multiple notices of appeal, this court assigned a single appellate docket number (No. F056521) to appellant’s case.
On June 17, 2009, the superior court granted the request of appellant’s counsel and ordered that appellant had 24 days of actual time credits and 12 days of conduct credits as of October 31, 2008.
On January 2, 2009, the court conducted a sentence modification hearing at the request of appellant and placed her on three years’ probation.
We affirm the judgment and sentence of the superior court.
STATEMENT OF FACTS
General Facts
Ted Tessendore testified he was a supervisor/manager with R.M. Covington Homes in Madera, California. His duties included the direction of subcontractors, scheduling of work to complete the building of homes, conducting walk-through inspections, and post-construction customer service. In 2006 or 2007, Covington constructed and sold a condominium to appellant Loret Bilkiss and she disagreed with the adequacy of some of the items on her walk-through. Subcontractors made appointments to meet with her and correct any problems. As of February 2007, appellant still had a number of unresolved construction issues at her condominium. Tessendore said he and his staff tried to give appellant more attention and keep her happy but sometimes their efforts “would just turn around and bite us.”
Facts Underlying Counts 2 and 3
At 4:30 p.m. on February 16, 2007, Tessendore was preparing to drive home from work. His vehicle was a 1998 Ford Explorer and his office was a job trailer near the corner of Westberry and Almond Avenues in Madera. One of Tessendore’s customer service representatives called him and said appellant was walking at a fast pace on Almond Avenue and was carrying something resembling a rock or hat in her hand. The representative could not tell whether appellant was exercising or was mad. Tessendore had 25 to 30 contacts with appellant in the six to eight months preceding that date.
Tessendore drove to the intersection of Westberry and Almond and slowed for a stop sign. He noticed a female to the left of the driver’s side door with her arm in motion. Tessendore looked over, recognized the female was appellant, and then heard a bang on his car. Tessendore knew there were small children in the neighborhood and was at first afraid he ran over one of them. He got out of his vehicle, saw appellant and then saw a rock right next to his door. After determining that he did not strike anyone with the car, he ordered appellant to stay put while he called the police. She disobeyed and kept walking. At that point, Tessendore realized appellant had thrown a rock at his vehicle although he did not see the rock hurtle toward his car. However, he did see appellant’s arm in motion, did see a rock near the car after he stopped, and did see a dent on the car door after she made the motion. The rock made a dent on the door above the running board.
Tessendore said appellant turned around for a moment so that he could verify her identity and then kept walking at a brisk pace south on Westberry toward Howard Road. Tessendore said she appeared angry when she turned around. On cross-examination, Tessendore said the rock near his vehicle was the only one he saw in the area when he alighted from the driver’s seat. He also said the person who threw the rock was standing on a sidewalk about 10 to 12 feet from the vehicle when the rock was thrown. He added that the rock thrower was standing at “maybe a 45-degree angle from my front windshield, it was off to the left driver’s side at a 45.” When Tessendore saw Bilkiss throw the rock, there was no one else in the area. He heard a very loud bang when the object hit his door and then saw appellant walk away. He called the police immediately after the incident occurred.
Madera Police Office Jason Gutknecht testified he responded to a vandalism call on February 16, 2007, at about 4:53 p.m. He arrived at a residence on Granada Drive in Madera and saw Officer S. Myers speaking with appellant. Myers had arrived at 4:27 p.m. Appellant was agitated, angry, upset, and speaking loudly. Officer Gutknecht said he had received brief details of the alleged offense on his patrol car computer screen and did not believe those facts amounted to probable cause. However, after conferring with Officers Myers and Tessendore, Gutknecht concluded there was probable cause to make an arrest. Gutknecht noted that Tessendore wanted to place appellant under citizen’s arrest, since a misdemeanor occurred outside the officers’ presence.
Gutknecht said Myers asked appellant a series of investigatory questions and she responded by pointing to Tessendore and saying, “Ask him.” At one point, Officer Myers informed appellant she would be placed under arrest and that Tessendore wanted to place her under arrest. When Myers so advised her, appellant stated, “No, ” and walked back into her home. Gutknecht thought she was going to resist arrest. He said the officers’ duty was to effectuate the arrest using the least amount of force.
The officers followed appellant into her home and let her walk briskly around the house. They asked her she if she wanted to gather any belongings before departing and allowed her to speak to someone on the telephone. She acknowledged the officers but paid more attention to the person on the phone. Gutknecht said the officers sought to diffuse the situation and accommodate appellant’s needs. Although appellant was somewhat passive about compliance, Gutknecht said she did not want to go into the back of a patrol car or be placed in handcuffs.
The officers followed appellant into the kitchen area. Myers noticed a pill bottle next to a purse on the counter. Myers picked up the bottle to see if she was on any medication. After he placed it down, Gutknecht picked it up to see if he could read the label or recognize the pills. At that point, appellant took a step towards him and forcefully grabbed the pill bottle out of his hand. He said “she took a swipe at my hand and grabbed it.” At trial, Gutknecht said he looked at the bottle to see if she was on any type of medication that would be needed at the jail. He thought this was relevant to the investigation because appellant was not acting normally, given her anger. After appellant grabbed the pill bottle from Gutknecht, the officer thought the situation was escalating.
In response to the escalation, the officers effected arrest by grabbing her hands, placing them behind her, and placing the handcuffs on her. Gutknecht said the officers had tried every option up to that point. Appellant did not want to go, did not want to be in handcuffs, and did not voluntarily turn around for the officers. Gutknecht said they did not feel they had any lesser alternatives at that point.
Gutknecht said he never responded to the scene of the rock throwing. Rather, he went directly to appellant’s home. Gutknecht estimated the distance between the intersection of Almond and Westberry and appellant’s home to be one mile or less. Gutknecht never formally informed appellant that she was under arrest. He said the officers did not have a warrant to search her home or to place her under arrest. Officer Myers advised appellant she was under citizen’s arrest. Gutknecht asked appellant if she wanted to get some things together. Gutknecht said he and Officer Myers could follow appellant into her home because “[a]t that point she was under arrest and basically she was resisting, delaying, or obstructing our investigation by her walking into her house, and at that point we had probable cause to arrest her.” In Gutknecht’s view, appellant knew she was going to be arrested when she replied “no” and turned around and walked into her home. He based this conclusion on her tone and demeanor.
Facts Underlying Count 1
Madera County Deputy Sheriff Jeff Thomas testified he responded to a dispatch on February 27, 2007. A person reported that an elderly female had placed objects under all four tires of a vehicle parked in a garage near the Madera Government Center. The reporting party, one Ralph Hunter, said nails had been placed under each of the four tires of the vehicle, a Ford Explorer. Hunter pointed out the vehicle and Thomas saw the nails under the tires. The vehicle belonged to Ted Tessendore who was at the vehicle by the time Thomas arrived on the scene. Thomas took statements from Hunter and Tessendore and collected nine nails as evidence.
Hunter described the suspect’s clothing and Tessendore gave the name of Loret Bilkiss. Thomas called appellant’s home and left a message on her answering machine. She called Thomas back the following day, he explained the investigation of the incident at the parking garage, and he attempted to get a statement from her. Thomas felt she was evading, lying, and attempting to divert his attention from the parking garage incident. He directly asked whether she placed the nails under the tires and she denied doing so.
Ralph Hunter testified he saw a female suspect in the parking lot between 10:00 a.m. and 10:30 a.m. on February 27, 2007. Hunter had taken his son to court during the 8:00 a.m. hour and had parked in a handicapped stall. A white SUV was also parked in a handicapped stall. The latter stall was located “right behind” Hunter’s parking stall. When Hunter and his son were finished in court, Hunter went to the parking lot and got in his car. He looked in his mirror and saw a female “bent over right behind the front tire on the passenger’s side.” At first, Hunter thought the woman had fallen down and was trying to get out of the way of vehicles. Then he realized she was bent over placing objects underneath the tires of the SUV. When he saw the female bent over next to the SUV, he pulled out, took the south exit from the parking garage, and went around. He reentered the parking structure, stopped again, and got out. At that point, he saw objects behind the tires, determined the objects were nails, and called 911. Hunter said the nails were about four and one-half inches long.
Hunter said he was standing about 25 feet from the suspect but was able to see her face clearly and briefly make eye contact with her. After making eye contact with Hunter, the woman moved fairly quickly toward the garage elevator. Hunter called the Sheriff’s Department and Deputy Thomas responded about five to 10 minutes later. Tessendore arrived a couple of minutes after Thomas. According to Thomas’s report, Hunter described the suspect as wearing blue jeans, a green shirt, and a white undershirt.
About three weeks later, Deputy Thomas showed Hunter a photographic lineup. The deputy admonished Hunter that the suspect might or might not be depicted in the lineup. Hunter selected a photograph, but he did not think any of the pictures looked like appellant because the pictures were of younger females and the suspect appeared older. Hunter said he saw appellant again after the incident. This took place in another department of the superior court and Hunter recognized her immediately. He based his recognition on her face and her hair. The parties stipulated the photographic lineup shown to Hunter was destroyed by the Madera County Sheriff’s Department as part of the routine destruction of evidence.
Tessendore testified he made a court appearance on February 27, 2007, relating to a restraining order against appellant. He parked in the handicapped area on the bottom floor of the five-story parking structure just north of the Madera Courthouse. When he returned to his car, a man told him, “Don’t touch anything in your car, because I just saw a lady place some nails underneath … your car on all four tires.” Tessendore saw multiple nails under each of his car tires. The nails appeared to be 16 penny nails, approximately two and one-half inches long. Tessendore said appellant was dressed in blue jeans, a green blazer with white shirt underneath, and wore glasses on February 27, 2007. Tessedore speculated to Hunter about the identity of the suspect and said, “[T]here’s no other person in this world that I could think of that would do anything like that to me.…”
Facts Underlying Counts 4, 5, and 6
On August 3, 2007, the superior court conducted a short cause court trial in Tessendore v. Bilkiss, case No. MCV035932. During that trial, Tessendore’s counsel recited a stipulation for the record, the parties indicated their agreement to the recited terms, and the court adopted the agreement of the parties as the order of the court. The court directed Tessendore’s counsel to prepare and forward the order after hearing to appellant’s counsel to approve of form and content before forwarding the order to the court for signature.
On December 6, 2007, the court signed and filed the order after hearing, which stated in relevant part:
“Trial was held on August 3, 2007 at 8:30 a.m. before the Honorable Eric C. Wyatt in Department 4 of the above-entitled court. Plaintiff was represented in court by his attorney, Monrae L. English. Defendant, Loret Bilkiss, was represented by attorney, Moton B. Holt. The parties entered into the following resolution:
“1. Loret Bilkiss expresses no liability in this matter.
“2. A three-year restraining order will go into effect beginning August 3, 2007 and ending August 3, 2010 against Loret Bilkiss in favor of Ted Tessendore.
“3. Loret Bilkiss must not do the following to Ted Tessendore; [s]he must not harass, attack, strike, threaten, assault, hit, follow, stalk, destroy personal property or keep Ted Tessendore under surveillance.
“4. Loret Bilkiss shall not have any contact directly or indirectly with Ted Tessendore via telephone (business or personal).
“5. Loret Bilkiss shall not send, forward or direct any written correspondence or messages directly or indirectly to Ted Tessendore to include but not limited to letters, cards, notes or text messages.
“6. Loret Bilkiss shall not send, forward or direct any electronic correspondence through the computers directly to or through others to Ted Tessendore to include but not limited to sending or forwarding e-mail messages.…”
According to the report and recommendation of the probation officer, Tessendore was working as a supervisor for Valley Vanguard Properties in December 12, 2007. Sharon Dawson testified she was the customer relations coordinator for the corporate office of Valley Vanguard Properties. Dawson said appellant purchased one of their duplexes and contacted Dawson about customer service issues. Dawson said she received three e-mails from appellant after the superior court issued a restraining order against her. Dawson gave the owner of her company a copy of the e-mails and sent copies to the attorney who had secured the restraining order. The top line of one of the e-mails was addressed to the attention of “Mitch Covington and Ted Tessendore.”
Defense
Appellant did not present any documentary or testimonial evidence but chose to rely on the state of the prosecution evidence.
DISCUSSION
I. DID THE GOVERNMENT VIOLATE APPELLANT’S DUE PROCESS RIGHTS BY DESTROYING EXCULPATORY EVIDENCE RELATING TO THE ATTEMPTED VANDALISM CHARGE?
Appellant contends her attempted vandalism conviction must be reversed because the government destroyed exculpatory evidence, i.e., the photographic lineup.
A. Factual and Procedural History
Deputy Thomas testified he showed Ralph Hunter a lineup that included appellant’s photograph, but Hunter picked the picture of a different person as the suspect in the attempted vandalism of Tessendore’s car. The prosecution and defense stipulated “[t]he photographic lineup shown to Ralph Hunter was destroyed by the Madera County Sheriff’s Department as part of the routine destruction of evidence.” On June 13, 2008, appellant moved to dismiss the vandalism charge on the grounds of destruction of evidence.
B. Ruling of the Trial Court
The court conducted a hearing on the motion on August 19, 2008, and ruled:
“The deputy who showed the photo line-up to the witness testified that he did not keep a record of what pictures were in the photo line-up or which picture the witness selected. The witness selected someone other than the defendant when he viewed the photo line-up. That fact has exculpatory value. That fact exists and its existence is not altered by the fact that the photo line-up has been purged.
“The line-up itself might have been useful to defense if it had showed -- if it showed the person who was selected looked different than the defendant. The usefulness of that line-up to the defense diminishes as the similarity between the person selected and the defendant increases. The deputy is available to describe the similarity or lack of similarity between the photographs in the line-up. The destruction of the photo line-up, however, precludes the trier of fact from being able to see the line-up for themselves and form their opinion based on firsthand observation.
“This Court finds that the destroyed evidence is potentially useful evidence and, as stated in Arizona versus Youngblood, no due process violation occurs from the destruction of potentially useful evidence unless it was destroyed in bad faith. The evidence in this case was destroyed by law enforcement in the ordinary course of business. That does not show bad faith. [¶]... [¶]
“Since the destruction of the photo line-up in this case was done in the routine course of business after the Sheriff’s Department had been informed by the District Attorney’s Office that they were not prosecuting the case, the destruction was not done in bad faith. Although the destroyed evidence was potentially useful to the defense, the destruction was not done in bad faith, so due process violation does not exist. [¶] The Motion to Dismiss is denied.”
C. Contentions on Appeal
Appellant now contends her due process rights were violated because the destroyed evidence was exculpatory and material, even if the government did not act in bad faith, and that the trial court erred in finding no violation of due process. She submits the case of California v. Trombetta (1984) 467 U.S. 479 requires sanctions for the destruction of exculpatory evidence, even in the absence of bad faith. She further contends a photographic lineup in which a percipient witness chose someone other than the appellant was exculpatory and not merely “potentially useful” for purposes of applying the relevant case precedents. She lastly contends that destruction of the photographic lineup was not harmless beyond a reasonable doubt.
D. Governing Law
The U.S. Supreme Court has held law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta, supra, 467 U.S. at p. 488; accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta, supra, 467 U.S. at p. 489; People v. Beeler, supra, 9 Cal.4th at p. 976). The state’s responsibility is further limited when the defendant’s challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct 333, 337, 102 L.Ed.2d 281].) In such cases, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id. at p. 58; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)
On review, a California appellate court must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022; People v. Roybal (1998) 19 Cal.4th 481, 509-510; People v. Cooper (1991) 53 Cal.3d 771, 810; People v. Carter (2005) 36 Cal.4th 1215, 1246.)
E. Analysis
If a defendant demonstrates that significant exculpatory evidence was lost or establishes bad faith in connection with the loss of potentially useful evidence, then the trial court has discretion to impose appropriate sanctions. (People v. Medina (1990) 51 Cal.3d 870, 894.) To meet the standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (California v. Trombetta, supra, 467 U.S. at pp. 488-489.) The mere possibility that an item might have helped the defense does not establish “materiality” in the constitutional sense. (People v. Fauber (1992) 2 Cal.4th 792, 829, citing United States v. Agurs (1976) 427 U.S. 97, 109-110.) Nor does evidence with only “minimal exculpatory value” meet the constitutional standard of materiality. (People v. Beeler, supra, 9 Cal.4th at 977.)
Appellant submits the destroyed photographic lineup was material exculpatory evidence and sanctions are mandated for its destruction. However, the record contains substantial evidence to support the trial court’s finding that the destroyed lineup was simply “potentially useful” and that no bad faith occurred. First, as to bad faith, Yolanda Abbott, a property and evidence technician with the Madera County Sheriff’s Office, testified in connection with appellant’s motion to dismiss. Abbott said she followed her office’s standard procedures/practices and purged (shredded) the lineup approximately six months after receiving an intake form from the district attorney that the case had been rejected for prosecution due to insufficient evidence. Abbott said she did not know any facts relating to appellant’s case and had no idea of the relative weight of the lineup when compared to any other evidence in the case.
The offense occurred on February 27, 2007, and the intake form was dated September 5, 2007.
Second, the court acknowledged that Ralph Hunter’s selection of a photograph other than that of appellant did have exculpatory value. However, the fact of his erroneous selection was not altered by the purging of the photographic lineup. As the prosecution frankly acknowledged in its supplemental response to the motion to dismiss, “The existence of a previous false identification may be relevant to rebut the degree of certainty of Mr. Hunter’s later identification, but it does not negate it.”
Third, the defense and prosecution entered into a written and oral stipulation at trial that the photographic lineup was destroyed “as part of the routine destruction of evidence.” Thus, the jury was informed just prior to deliberations of the material facts surrounding the photographic lineup and its destruction.
Finally, any error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24.) Although Hunter did not select appellant’s photograph from the lineup, he did identify her at a later date when they were both at the Madera County Government Center. He also identified her during trial. Hunter said that Deputy Thomas told him he had to select one picture, so he picked the photograph that looked most like the appellant. Hunter said he “hesitantly” made his selection and did not think any of the photographs accurately depicted appellant because “[t]hey didn’t look old enough to be her.” Nevertheless, Hunter said he was able to immediately recognize appellant the next time he saw her in person based upon her face and her hair.
Substantial evidence supported the finding and determination of the trial court and reversal for evidentiary error is not required.
II. DID THE PROSECUTOR VIOLATE APPELLANT’S FIFTH AMENDMENT RIGHTS BY COMMENTING ON HER POST-DETENTION SILENCE?
Appellant contends the prosecutor violated her Fifth Amendment privilege against self-incrimination by emphasizing in testimony and at argument her silence in the face of police questioning.
During Officer Gutknecht’s testimony, the prosecutor asked about a 4:30 p.m. dispatch to appellant’s home on February 16, 2007. Gutknecht said he arrived at the scene and appellant was speaking with Officer Myers. According to Gutknecht, Myers was asking investigatory questions of the appellant. Gutknecht said “[s]he was very agitated, angry, upset. It looked like she was -- she was speaking loudly.” When the prosecutor asked about her responses to Myers, Gutknecht said, “She was being evasive. He was asking questions. She would always refer to and point to Mr. Tessendore and state, ‘Ask him.’” When questioned about other responses by appellant, Gutknecht replied, “Everything I recall was her being evasive and just stating, ‘Ask him. Ask him.’”
The prosecutor stated during his opening argument:
“There was a 911 call, dispatch sent Officer Myers there in the course of his employment, his duties as a peace officer. Now, what’s interesting here is Officer Myers was the only one there at first. Why did Officer Gutknecht show up? Backup. Why would you need backup for that? Because of her behavior that day. There was... something not right and Officer Myers knew it. He needed help. She was not answering questions. She was not being cooperative in the investigation. She was obstructing the investigation. Less than that, she was just delaying it. I mean, what reason did she have to be evasive? Consciousness of guilt. She said, ‘Ask him.’ She was dodging the question and resisting and delaying the investigation. They just wanted to hear her side of the story. But Officer Myers knew something was wrong and Officer Gutknecht showed up, both of them peace officers, both of them dispatched in the performance of their duties after a citizen had reported … a crime.
“We also need to show the defendant willfully resisted, obstructed, or delayed Officer Gutknecht and Officer Myers in the performance or attempted performance of their duties. Well, you heard the testimony. I’m not really sure what’s not willful about what she did. Even after she was informed that she was going to be placed under citizen’s arrest, she said, ‘No, ’ and turned around and walked into her house. How is that unequivocal in any way? What else could that mean besides no, I’m not going to be arrested, and she walks into her home. She didn’t run away. She’s not a fleeing felon necessarily. But she’s obviously delaying their investigation, obviously delaying the arrest.”
In his closing argument, the prosecutor added:
“We have an eyewitness victim seeing the defendant throwing a rock at his car. There’s a rock … by the driver side of his car. He sees the defendant walking away. The officers go to her house and she’s evasive with the answers, I think … what [defense counsel] said was if someone accuses you of a crime and you deny it, that doesn’t go to show your guilt. That’s a preposterous conclusion. Well, of course it is. That’s not what happened. She didn’t say I didn’t do it. She didn’t even try to say I didn’t do it. She said, ‘Ask him.’ She’s not charged here with denying a crime, she’s charged with resisting, delaying and obstructing an investigation. And the fact that she was completely … evasive was not only a part of a separate crime itself, but it certainly goes to show her consciousness of her guilt of the previous crime. She didn’t say, I didn’t do it. She didn’t say, I don’t know this guy. She didn’t say, I didn’t throw the rock. She didn’t say, I wasn’t there. She wouldn’t answer. She said, ‘Ask him.’”
Appellant contends the prosecutor’s comment on her post-detention silence violated her rights under the Fifth Amendment. A defendant has the right to not be compelled in any criminal case to be a witness against himself. (U.S. Const., 5th Amend.; see also Cal. Const., art. I, § 15.) The case of Griffin v. California (1965) 380 U.S. 609 forbids comment by the prosecutor on a defendant’s failure to testify. “Although the Griffin case involved direct reference to the defendant’s failure to testify, the decision has been interpreted as prohibiting the prosecution from so much as suggesting to the jury that it may view the defendant’s silence as evidence of guilt.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1287.) “Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendant’s failure to testify in his defense.” (People v. Medina (1995) 11 Cal.4th 694, 755.)
The United States Supreme Court in Doyle v. Ohio (1976) 426 U.S. 610 held it was a violation of due process to use a defendant’s silence at the time of arrest and after receiving Miranda warnings for impeachment purposes. (Id. at p. 619.) Nevertheless, the United States Supreme Court has held that the government may comment on a defendant’s prearrest silence for impeachment purposes. (Jenkins v. Anderson (1980) 447 U.S. 231.) The court has not yet ruled “on the constitutionality of the use of prearrest, pre-Miranda silence as substantive evidence of guilt.” (People v. Waldie (2009) 173 Cal.App.4th 358, 365 (Waldie).) The federal Courts of Appeals have taken opposing views on this question. (Id. at pp. 365-366.) In Waldie, Division Two of the Fourth Appellate District observed:
Miranda v. Arizona (1966) 384 U.S. 436.
“If the police are allowed to call a suspect persistently and then offer his unwillingness to respond as evidence of guilt, a defendant would never be able to claim the protection of freedom of incrimination. A different result might be indicated if the detective had called defendant only one time or a few times. But testimony about repeated phone calls and apparent evasiveness by defendant is constitutionally infirm.” (Id., at p. 366.)
The Waldie court nevertheless found any error in admitting a detective’s testimony about the criminal defendant’s evasiveness was harmless beyond a reasonable doubt in light of the credible, consistent, and plausible testimony of the minor victim and her mother. (Id., at pp. 366-367.)
Evidence Code section 353 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
Appellant acknowledges her trial counsel did not raise an objection to the statements at trial but maintains any objection would have been futile because it would not have been supported by the substantive law prevailing at the time of trial. In other words, the Waldie case had not been decided at the time of her trial and therefore it was unavailable as authority for an evidentiary objection. Evidentiary challenges are usually waived unless timely raised in the trial court. An exception exists where the pertinent law later changes so unforeseeably that it was unreasonable to expect trial counsel to have anticipated the change. (People v. Turner (1990) 50 Cal.3d 668, 703.) Here, the law did not change unforeseeably. As the Fourth District noted in Waldie, the law is still in a state of flux because the Supreme Court has not yet ruled on the constitutionality of the use of prearrest, pre-Miranda silence as substantive evidence of guilt. (People v. Waldie, supra, 173 Cal.App.4th at p. 365.) Appellant’s failure to object or otherwise raise the evidentiary claim below must be deemed waived. (People v. Hughes (2002) 27 Cal.4th 287, 332.)
Even if we assume appellant has somehow preserved the evidentiary error, the factual setting in Waldie is much different than that in the present case. In Waldie, a Hemet detective testified he was conducting a child molestation investigation and the defendant promised to call the detective but never did so, despite a dozen phone calls from the detective. The Waldie court agreed with defendant that the prosecution could not use defendant’s nonresponse to the police phone calls as evidence of guilt in the case in chief. (Waldie, supra, 173 Cal.App.4th at p. 364.) In the instant case, no invocation of the Fifth Amendment right to remain silent occurred. Tessendore testified he was present when Officer Myers questioned appellant and that she was “very argumentative” with him. In response to Myers’s questions, appellant denied that she threw the rock. She also denied that she was walking outside her home. She claimed she was home on the telephone at the time of the rock-throwing incident. When Officer Gutknecht arrived and overhead the discussion between Myers and appellant, he said appellant would act evasively and “refer and point to Mr. Tessendore and state, ‘Ask him.’”
The prosecutor’s arguments did not amount to commentary about her pre-arrest silence. Rather, the prosecutor simply recited appellant’s statements to Officer Myers and suggested her repeated remark, “Ask him, ” was an element of the crime charged in count 2, i.e., resisting, obstructing, and delaying an officer in the discharge of his duty or employment.
A review of the record on appeal demonstrates appellant’s evasiveness and consciousness of guilt on the date of the offense. On the date of the rock-throwing incident, Tessendore’s colleague contacted him and warned that appellant was in his vicinity, appeared to be angry, and was carrying a rock or hat in her hand. Shortly after receiving that telephone call, Tessendore saw appellant standing 10 to 12 feet away from his vehicle. He saw her put her arm in motion. That motion was followed by a bang on the driver door of his car. He opened the door and saw a rock in the area of the door and a dent in the door itself. Appellant was the only other person in the area of Tessendore’s vehicle. Tessendore instructed her to “stay put” while he called the police. She quickly walked away from Tessendore and his vehicle. Law enforcement officers arrived at her home, she was evasive in responding to their questions, and she attempted to avoid detention by walking into her home.
In view of the foregoing evidence, even if there were any error in the admission of appellant’s statements to Officer Myers about her conduct and the prosecutor’s argument about that conduct, it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
III. WAS THE CONVICTION OF RESISTING AN OFFICER SUPPORTED BY SUBSTANTIAL EVIDENCE?
Appellant contends substantial evidence does not support the resisting arrest charge in count 2. She specifically argues the prosecution failed to prove the element of lawful performance of police duties when she was arrested in her home without a warrant.
Count 2 of the first amended consolidated information charged a violation of section 148, subdivision (a)(1) “in that the said defendant did willfully and unlawfully resist, delay and obstruct Officers S. Myers and J. Gutknecht who was [sic] then and there peace officers attempting to and discharging the duty of his/her office and employment.”
Section 148, subdivision (a)(1) states in relevant part:
“Every person who willfully resists, delays, or obstructs any … peace officer … in the discharge or attempt to discharge any duty of his or her office or employment when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
The legal elements of the crime of obstructing a peace officer are: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894.) Before a person can be convicted of resisting a peace officer, there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him or her was committed. (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819.)
In assessing a claim of insufficiency of evidence, the task of the appellate court is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence. Substantial evidence is that which is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the findings of the trier of fact, the opinion of the appellate court that the circumstances might also be reasonably reconciled with a contrary finding does not mandate a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Under California law, it is the duty of a jury to acquit a criminal defendant if it finds circumstantial evidence susceptible to two interpretations, one of which suggests guilt and the other which suggests innocence. Nevertheless, it is the jury and not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. (Ibid.)
The court instructed the jury: “The People allege the defendant delayed, resisted or obstructed Officers Myers and Gutknecht by doing the following: One, by walking away from the officers and going into the house when told she was being placed under citizen’s arrest; two, by slapping at Officer Gutknecht’s hands, grabbing the pill bottle and putting it down.” Appellant contends there was no evidence that she was in a public place when the arrest occurred or that an exception to the warrant requirement applied at the time the arrest occurred. Rather, she submits the arrest occurred while she was inside her residence. She concludes the police were not acting lawfully when they entered her home and arrested her.
Appellant presumes no citizen’s arrest occurred in the instant case and implies the officers could have only lawfully arrested her with a warrant or under exigent circumstances. The court specifically instructed the jury: “A peace officer may arrest a person in obedience to a warrant, or when he has probable cause to believe that person has committed a felony, or when he has probable cause to believe that person committed a public offense in his presence, or when the person was arrested by a private person for the commission of a public offense committed in the presence of the private person. Any other arrest is unlawful.” (Emphasis added.)
A private person may arrest another for a public offense committed or attempted in his presence. (§ 837, subd. 1.) The authority of a private citizen to make an arrest is more limited than the authority of a peace office. A peace officer may arrest a person without a warrant whenever he or she has probable cause to believe the person has committed a misdemeanor in his or her presence. A private citizen may arrest another for a misdemeanor only when the offense has actually been committed or attempted in his or her presence. The mere fact the private person has reasonable cause to believe a misdemeanor has been committed or attempted in his presence is insufficient. “Presence” is not mere physical proximity. Rather, it is determined by whether the offense is apparent to the senses of the person who makes the arrest. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 512.)
Under California law, the private citizen effecting an arrest may summon the police to his or her aid and there is no requirement that the citizen keep the offender in view throughout the time intervening between observation of the offense and the arrest. (Green v. Department of Motor Vehicles (1977) 68 Cal.App.3d 536, 650-541.) “A private person who has arrested another for the commission of a public offense, must, without unnecessary delay... deliver him or her to a peace officer.” (§ 847, subd. (a).)
An arrest is more than a momentary incident. Rather, it is a continuous transaction and the validity of an arrest is not compromised simply because the transaction is commenced by one officer but completed by another. That is because any person making an arrest may summon as many persons as he or she deems necessary to aid in the arrest. (§ 839.) Section 839 authorizes the delegation of the physical act of taking an offender into custody and applies to citizen’s arrests. A citizen may make an arrest for a misdemeanor committed in his or her presence and, in doing so, may delegate the act of taking the suspect into physical custody. The delegation of the physical act of arrest need not be express. The delegation may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect. (Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1030-1031.)
In the instant case, Officer Gutknecht testified that Ted Tessendore wanted appellant placed under arrest and that Officer Myers informed appellant that she would be placed under arrest. Gutknecht further testified that after Officer Myers so advised appellant, the appellant “stated no, and walked back in her house.” The testimony of a single witness entitled to full credit is sufficient for proof of any fact unless additional evidence is required by law. (Evid. Code, § 411.) From Gutknecht’s testimony, the jury could reasonably infer that appellant was placed under citizen’s arrest outside her home, that Tessendore delegated to the peace officers the responsibility of taking her into physical custody, that she willfully refused to submit to the officers’ authority, and that the officers followed her into the house to complete the arrest that Tessendore had delegated to them.
Appellant now construes the record to claim an unlawful arrest by peace officers within the confines of her home. An appellate court is not permitted to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts. Such functions are reserved for the trier of fact, which in this case found adversely to the appellant. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Construing the evidence in the light most favorable to the judgment, we find appellant resisted the peace officers after Tessendore effected a citizen’s arrest and delegated to them the act of taking appellant into physical custody. The verdict of the jury on count 2 was supported by substantial evidence and appellant’s claims to the contrary must be rejected.
IV. DID THE TRIAL COURT ERRONEOUSLY ALLOW A WITNESS TO TESTIFY ABOUT AN ELEMENT OF RESISTING ARREST?
Appellant contends the trial court invaded the province of the jury by allowing Officer Gutknecht to testify that he and Officer Myers properly arrested appellant and entered her home without a warrant.
During cross-examination, Officer Gutknecht testified he advised appellant that Tessendore wanted her arrested, that she responded by entering her home, and that he followed her into the house. When questioned as to whether the officers had a search or arrest warrant, Gutknecht testified, “Officer Myers … advised her she was under citizen’s arrest, so at that point, yes, she was under arrest.” Gutknecht confirmed he followed appellant into the house and did not have a warrant for her arrest or for the search of her home. On redirect examination, Gutknecht testified without objection that (1) officers are authorized to effect a citizen’s arrest that someone else is placing; (2) there is no difference between a citizen’s arrest and an officer-effected arrest; and (3) and that he did not need a search warrant to arrest appellant. When the prosecutor asked why Gutknecht did not need a warrant, defense counsel objected on the ground that the question called for a legal conclusion.
On appeal, appellant contends the superior court erroneously “allowed the police officer to testify to the legality of the arrest of Ms. Bilkiss and the entry into her home.…” She further contends the court’s rulings led the jury to believe they did not need to decide (1) whether appellant was in the doorway of her home at the time of arrest; (2) whether she was arrested before or after police entered her home; and (3) whether there were exigent circumstances to warrant entry into the home if the arrest did not take place in the doorway of the home.
Although appellant interposed an objection to the question about the necessity of a warrant, appellant failed to interpose specific objections to other portions of the testimony now challenged on appeal. “A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless: ‘There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion.’” (People v. Morris (1991) 53 Cal.3d 152, 187, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Appellant interposed a single objection on the ground the witness was stating a legal conclusion. However, she did not object to other portions of the testimony, which she now challenges on appeal. Objections not raised in the trial court are waived for purposes of appeal. (People v. Price (1991) 1 Cal.4th 324, 430.) Further, appellant initially elicited testimony on this topic during the cross-examination of Officer Gutknecht. On redirect examination, the prosecutor asked additional questions of Officer Gutknecht to explain the officers’ conduct on the date of the incident. Now, appellant asserts evidentiary error on appeal. A party is estopped from asserting on appeal an error that was invited or provoked by the party or his or her counsel. (People v. Katzman (1968) 258 Cal.App.2d 777, 792, disapproved on another point by Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780, fn. 11.) In any event, the testimony of Office Gutknecht was not addressed to the constitutional or statutory legality of a warrantless arrest, but to Tessendore’s making of a citizen’s arrest, his delegation of the physical act of taking appellant into custody, the officers’ response to that delegation of duty, and appellant’s resistance to the officers’ conduct.
The trial court did not abuse its discretion in allowing Officer Gutknecht to testify about the arrest of appellant. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
V. DID THE TRIAL COURT ERRONEOUSLY INSTRUCT THE JURY ABOUT WARRANTLESS ARREST AND WARRANTLESS ENTRY INTO A HOME WITHOUT EXIGENT CIRCUMSTANCES?
Appellant contends the superior court committed reversible error on count 3 by failing to instruct the jury sua sponte on the lawful performance of an officer’s duties, including arrest without a warrant in a private home and warrantless entry into a home without exigent circumstances.
The trial court instructed in CALCRIM No. 2656 [resisting peace officer, public officer, or EMT (Pen. Code, § 148(a)] at the request of the prosecutor. The trial court instructed in CALCRIM No. 2670 [lawful performance: peace officer] at the request of defense counsel. CALCRIM No. 2670, as read to the jury, stated in relevant part:
“The People have the burden of proving beyond a reasonable doubt that Officers Myers and Gutknecht were lawfully performing their duties as peace officers. If the People have [not] met this burden, you must find the defendant not guilty of resisting, obstructing, or delaying a peace officer in the performance of his duties.
“A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone.
“A peace officer may legally detain someone if, one, specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to a crime; and, two, a reasonable officer who knew the same facts would have the same suspicion.
“Any other detention is unlawful.
“In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she detained the person.
“A peace officer may arrest a person in obedience to a warrant, or when he has probable cause to believe that person has committed a felony, or when he has probable cause to believe that person committed a public offense in his presence, or when the person was arrested by a private person for the commission of a public offense committed in the presence of the private person.
“Any other arrest is unlawful.
“Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.
“In deciding whether the arrest was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she arrested the person.
“Throwing a substance at a vehicle on a [street] is a public offense.”
To the extent appellant is challenging the adequacy of CALCRIM No. 2670, her contention must be rejected. The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a conscious and deliberate tactical choice to request the instruction. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) To the extent appellant is claiming the trial court should have amplified CALCRIM No. 2670 by instructing on warrantless arrest and search, the contention must still be rejected for several reasons. First, the California jury instructions approved by the Judicial Council are the official instructions for use in the State of California and use of such instructions (including CALCRIM No. 2670) is strongly encouraged. (Cal. Rules of Court, rule 2.1050.) Second, the instruction as given did address whether the officers had a legal basis for arrest and specifically addressed the concepts of warrantless arrest and citizen’s arrest. Third, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party requested appropriate clarifying or amplifying language. (People v. Hart (1999) 20 Cal.4th 546, 622.) Appellant made no such request in the instant case and, even on appeal, fails to spell out the amplifying and clarifying language she desires.
Appellant’s apparent challenge to CALCRIM No. 2670 must be rejected on appeal.
VI. DID THE TRIAL COURT COMMIT CUMULATIVE ERROR?
Appellant contends “if this court finds that the errors related to the admission of legal conclusions by a witness... and to the failure to instruct on warrantless arrest and entry... standing alone do not establish prejudice under the appropriate standard of review, it must evaluate the errors cumulatively. The cumulative prejudicial effect of the errors described merits reversal.”
Appellant’s assertion of cumulative error is predicated on her theory of the case that no citizen’s arrest occurred, that only a constitutionally valid warrantless arrest and entry could justify the officers’ conduct in the case, that Officer Gutknecht improperly offered legal conclusions about the validity of appellant’s arrest, and that the trial court failed to instruct the jury on the concepts of warrantless arrest and entry.
Defendant has asserted a handful of errors and we have found each claimed error to be unfounded and harmless when considered separately. Considering them together, we likewise conclude that their cumulative effect does not warrant reversal of the judgment. (People v. Bolden (2002) 29 Cal.4th 515, 567-568.)
VII. DID SUBSTANTIAL EVIDENCE OF THE 2007 RESTRAINING ORDER SUPPORT THE CONVICTIONS ON COUNTS 4, 5, AND 6?
Appellant lastly contends she was convicted of violating an August 3, 2007, restraining order of the superior court but notes the actual formal order of the court was not filed until December 6, 2007. Therefore, she contends the convictions on counts 4, 5, and 6 (for violation of the order) were not based on substantial evidence.
On November 29, 2007, appellant transmitted three e-mails to Sharon Dawson of Valley Vanguard Properties. Dawson performed customer service at Valley Vanguard and testified that appellant had purchased one of their duplexes. The e-mails were transmitted at 5:37 p.m., 5:50 p.m., and 7:45 p.m. Each e-mail had the docket number for the superior court restraining order case (No. MCV035932) in the subject line and had copies transmitted to counsel English and Holt. The 5:37 p.m. e-mail reported that Tessendore had invaded her privacy by conducting surveillance of her vehicle. The 5:50 p.m. e-mail referred to Mitch Covington as “The Furor [sic]” and Tessendore as “the Hotsie-Totsie-Fatsie-Nasty-Nazi.” The 7:45 p.m. e-mail stated: “The 3-year restraining order of August 3, 2007 is null, void, kaput; I have absolutely no restraining order against me any longer and will not abide by one when Ted acts in the manner I have stated in the two e-mails. Ted is supposed to stay out of my life as equally, as I am his; etc. so f--- him. You’ve taken me on you son-of-a-bitch. Now live with that. You fat/limping bastard. I’m still stupid to you? You are out scouting for f---ing criminal charges you c--ks--ker!”
Counts 4, 5, and 6 alleged appellant violated section 166 subdivision (a)(4) “in that the said defendant did unlawfully commit contempt of court by willful disobedience of a process and order lawfully issued by a court, to wit, a 3 year restraining order.” At the close of the prosecution’s case, appellant moved to dismiss counts 4, 5, and 6 for insufficient evidence (§ 1118.1). The court denied the motion, stating: “The court order was in effect on August 3rd, 2007, when it was [recited in court] by Judge Wyatt. Reducing it to writing and having him sign it does not delay [effectiveness of] that order. It was in effect the date that he made it, which was August 3rd, 2007....
On appeal, appellant contends the court’s order of August 3, 2007, was an insufficient basis for the convictions on counts 4, 5, and 6 because it was not a written or definitive order until December 6, 2007, seven days after appellant sent the e-mails underlying counts 4, 5, and 6. Although the court minutes of August 3, 2007, referenced the stipulation of the parties, appellant contends the minutes were insufficient because they did not state the details of the stipulation.
Section 166, subdivision (a)(4) states:
“Except as provided in subdivisions (b), (c), and (d), every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor: [¶]... [¶]
“(4) Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial.”
Case law has held that service of a restraining order or injunction need not be shown to establish a charge of contempt. One who, with knowledge of the order or injunction, does some act forbidden by it, and who comes within one of the classes of persons already mentioned who are subject to the order or injunction, is guilty of contempt. (People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 979.) Appellant contends the recent case of In re Marcus (2006) 138 Cal.App.4th 1009, 1014-1016 (Marcus) requires a written order signed by the judge and filed with the court as a predicate for contempt. Marcus deals with civil contempt (Code Civ. Proc., § 1209, subd. (a)(5)) and appellant has not cited any authority extending the rule of Marcus to misdemeanor criminal contempt (§ 166), the offense charged in the instant case.
In California, the defendant in a contempt proceeding may challenge the validity of an injunction, the violation of which is the basis for a criminal contempt prosecution, even if no such claim was made when the injunction issued. In other words, the person may challenge the validity of the injunction when it is issued or reserve that claim until a violation of the injunction is charged as a contempt of court. (People v. Gonzalez (1996)12 Cal.4th 804, 818.) Here, the trial court admitted the civil protective order and the clerk’s minutes into evidence without objection by appellant. Instead, appellant waited until the close of the prosecution case and then moved for acquittal on counts 4, 5, and 6 on the ground of insufficient evidence. Appellant’s November 29, 2007, e-mail at 7:45 p.m. clearly reflected her knowledge and understanding of the restraining order effective August 3, 2007.
Moreover, a reading of the August 3, 2007, reporter’s transcript in case No. MCV035932 clearly reflects appellant’s understanding of the terms and conditions of the parties’ stipulation to resolve the civil dispute. Counsel for Tessendore recited the terms and conditions on the record. Counsel specifically recited: “A three-year restraining order will go into effect, beginning August the 3rd, 2007, and ending August the 3rd, 2010 against Loret Bilkiss in favor of Ted Tessendore.” Counsel went on to recite the specific terms of the parties’ agreement, including the prohibited conduct and communications and the applicable stay-away provisions. Tessendore indicated on the record that the recited terms constituted his agreement. The following exchange then occurred:
On April 5, 2010, this court filed a notice of intention to take judicial notice of the Reporter’s Transcript from the August 3, 2007, restraining order hearing in Madera County Superior Court case No. MCV035932 (Evid. Code, §§ 452, subd. (d)(1), 459.) This court granted the parties 10 days from the date of our order to present information on the issue of taking such judicial notice. The parties did not file written responses to our notice and we hereby take judicial notice of the August 3, 2007 Reporter’s Transcript.
“THE COURT: Okay. Ms. Bilkiss, did you hear all the terms as put on the record by Ms. English [Tessendore’s trial counsel]?
“THE RESPONDENT [Loret Bilkiss]: Yes.
“THE COURT: Okay. And do you have any questions about that? Anything you’re not sure you understand that you would like to ask Mr. Holt [her trial counsel]?
“THE RESPONDENT: No. I understand it.
“THE COURT: Okay. Do you in fact agree to that?
“THE RESPONDENT: Yes.
“THE COURT: [T]he Court will adopt the agreement of the parties. Make that the order of the Court. [¶] Ms. English, if you will prepare the Order After Hearing to that effect, forward that to Mr. Holt for his review as to form and content, I will sign it.”
In view of appellant’s express and informed stipulation and agreement at the August 3, 2007, hearing in case No. MCV 035932, her appellate claims to the contrary must be deemed waived.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P. J.CORNELL, J.