Opinion
B292621
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ERNESTO ESPINOZA, Defendant and Appellant.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA459094) APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed with direction. Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Pedro Espinoza of various domestic violence related offenses. On appeal, he contends that the trial court erred by denying his motion to represent himself, prior incidents of domestic abuse were improperly admitted, there was insufficient evidence of criminal threats, and the prosecutor committed misconduct. We reject these contentions, however, we remand the matter so that the trial court can exercise its sentencing discretion under newly enacted legislation.
BACKGROUND
I. Espinoza, the victim, and domestic violence
Espinoza and the victim began dating in March 2017. Their relationship quickly turned violent. The victim testified about two uncharged incidents of domestic violence. The first occurred just two weeks into their relationship. She and Espinoza drove to the hospital because he was ill. He became angry when the victim told him she was tired. She tried to leave the car but he grabbed her by the hair and pulled her back in. Once she was back at home, he induced the victim to come outside to see him by creating a disturbance and threatening to stab everyone.
The second incident occurred in May 2017. Espinoza became upset when he found a GPS system in the victim's car. The victim tried to leave, but Espinoza pushed her into the car, pulled her hair, and hit her. He drove them to his house, where she stayed, too scared to leave.
Thereafter, Espinoza and the victim were involved in the following charged instances of domestic violence.
A. The June 4, 2017 incident
While leaving a store with Espinoza and her two young children, Espinoza became upset when the victim told him she didn't like the way he called her "nigga." He grabbed her phone and threw it. She locked him out of the car, but when he banged on the windows and showed her a gun he had in his waistband, she unlocked the door. Espinoza hit the victim and pulled her hair. In the car, he waved the gun around. He drove off but returned so that the victim could get her phone. The victim asked several bystanders to call the police.
A witness reported to 911 that the victim opened a car door when a man banged violently on it. He struck the victim, grabbed her by the hair, and drove away with her.
Officers interviewed the victim that same night. She was shaking and fearful that Espinoza would attack her if she spoke to them. The victim had abrasions or bruises to her head, leg, and wrist.
After this incident, the victim told Espinoza she did not want to be in a relationship with him anymore.
B. The June 21, 2017 criminal threat
Although the victim had ended her relationship with Espinoza, she asked him to fix her car. He came over to work on it, and they discussed their relationship. When the victim repeated that she did not want to be with him, Espinoza became angry and said he wanted to be with her. Espinoza told her he would make her life miserable and would kill her. When he said this, he looked at his gun, which was in the car door. The victim was scared and thought he might follow through on his threat.
She reported the incident later that day. Officers went to the victim's home and found a gun in the car door. The victim was still nervous and scared.
Espinoza was arrested. The victim continued to talk to him while he was in jail, and even posted his bail because she was still in love with him and wanted to believe he would not hit her again.
C. The November 26, 2017 incident
After Espinoza bonded out, they continued to have an on-again, off-again relationship. On the night of November 26, 2017, the victim was out late with friends. She called Espinoza to pick her up, which he did. When they stopped at a gas station, the victim wanted to buy water, but Espinoza told her he had some in the car. His demeanor changed and he grabbed the victim's arm to forcibly walk her to the car. Scared, she did not resist. They drove away, but at a red light he grabbed her by the hair and forced her head down. She tried to get out of the car but he locked the doors. When her phone rang, he tried to make her unlock it by grabbing her hands, breaking her nails in the process. Espinoza began hitting her more aggressively, pulling her hair and choking her.
When he was done beating her, she asked him to take her home, but he took her to his house instead. She stayed the night, too scared to sleep. At some point, Espinoza took her to the hospital. Her face and arm were bruised and swollen and her nails were broken. II. Verdict and sentence
A jury found Espinoza guilty of false imprisonment by violence (Pen. Code, § 236; counts 1 & 6); criminal threats (id., § 422, subd. (a); count 3); and inflicting corporal injury (id., § 273.5, subd. (a); counts 5 & 7). Count 2 was dismissed before trial, and the jury found Espinoza not guilty of being a felon in possession of a firearm (id., § 29800, subd. (a)(1); count 4) and of personally using a firearm, which was alleged as to count 3. On August 22, 2018, the trial court sentenced Espinoza to a total term of 18 years four months, which term included five years under Penal Code section 667, subdivision (a)(1).
DISCUSSION
I. Denial of Espinoza's Faretta motion
Faretta v. California (1975) 422 U.S. 806 (Faretta).
The trial court denied Espinoza's pretrial request to represent himself. He now contends this denial violated his federal constitutional rights. (See U.S. Const., 6th & 14th Amends.) As we now explain, the request was properly denied as untimely.
A defendant in a criminal case has a Sixth Amendment right to represent himself. (People v. Marshall (1997) 15 Cal.4th 1, 20.) The defendant must unequivocally assert this right within a reasonable time before trial (People v. Windham (1977) 19 Cal.3d 121, 127-128), and the request must be knowing and voluntary (People v. Doolin (2009) 45 Cal.4th 390, 453). A timely, unequivocal request for self-representation must be granted, no matter how unwise the request. (Windham, at p. 128.) Otherwise, untimely requests for self-representation are addressed to the trial court's sound discretion. (Id. at pp. 127-129.) An untimely Faretta request requires consideration of the quality of counsel's representation, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. (Windham, at p. 128.)
The trial court here was well within its discretion to find Espinoza's Faretta motion untimely. He made it on day 18 of 20 for trial. A Faretta motion made moments before jury selection is to begin is untimely (People v. Valdez (2004) 32 Cal.4th 73, 102), as is one made four days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th 1197, 1204-1205). Further, in explaining why it found the motion untimely, the trial court pointed out that witnesses had been subpoenaed, the case was set for trial, and prospective jurors were available. Thus, granting the request would have resulted in significant disruption to the proceedings. That is why the trial court said it would grant the request if Espinoza was ready to proceed without a continuance. Suggesting he was not ready, Espinoza decided to stick with counsel.
It is of little consequence that the prospective jurors may not yet have been waiting in the hallway at the precise moment Espinoza made his motion. The panel was called up soon thereafter, thus demonstrating that the proceedings were well underway and trial was imminent.
No abuse of discretion occurred. II. Admissibility of 911 calls
Over Espinoza's hearsay and Crawford objections, the trial court admitted evidence of 911 calls made during the June 4, 2017 incident. As we now explain, the calls were admissible as spontaneous statements and not inadmissible under Crawford.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
At issue are two 911 calls. The declarants did not testify. A female witness made the first call. She said a man hit a woman and left with her in a car. The witness thought there might be a child with them. The witness recited the car's license plate number and described the man and woman and the direction in which the car left. At one point, the witness exclaimed, "Oh my God he was just beating her." The witness said these events occurred just one minute before she called 911.
The second call was from 911 dispatch to the witness and was made about 30 minutes after the first. Officers were unable to find the car, so dispatch asked for more information. The witness corrected dispatch's misunderstanding that the man drove off without the woman. The witness then described how the man banged on the car until the woman let him in, at which point he struck her and grabbed her by the hair. At the end of the call, a second witness told dispatch that she saw what had happened: "[h]e assaulted her and threw her back in the car and took her."
These facts demonstrate that the trial court did not abuse its discretion in finding that the calls were admissible as spontaneous statements under Evidence Code section 1240. (See People v. Poggi (1988) 45 Cal.3d 306, 318 [applying abuse of discretion review standard].) A spontaneous statement is an utterance that purports to describe or to explain an act or condition perceived by the declarant and that is made while the declarant is under the stress of excitement caused by the perception. (§ 1240, subd. (a); People v. Morrison (2004) 34 Cal.4th 698, 718.)
All further statutory references are to the Evidence Code unless otherwise indicated. --------
Here, a startling event had occurred: a man beat a woman and drove off with her, possibly with a child in the car. The witness called 911 one minute after witnessing this, which was little time to contrive events and while the witness was still under the nervous excitement of them. Similarly, the second call occurred about 30 minutes after the incident, a time in which the declarants remained excited. Statements made hours after a startling event (People v. Brown (2003) 31 Cal.4th 518, 541) or even days later (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713) have been admitted as spontaneous statements. And, notwithstanding that 30 minutes had passed, the trial court expressly found that the declarants remained excited. It listened to both calls and found that the way the declarants spoke indicated they were under the excitement of the incident. The trial court's discretion was at its broadest in making this determination. (See People v. Poggi, supra, 45 Cal.3d at p. 319.) Nor does the fact that the witness was responding to the dispatcher's questions lessen the spontaneity of the witness's statements. The dispatcher's questions were designed to elicit information to help officers find the victim. (See, e.g., id. at pp. 319-320.) Hence, the statements were admissible.
Nor were the calls inadmissible under Crawford. Crawford, supra, 541 U.S. at pages 53 to 54, held that admitting testimonial hearsay violates the confrontation clause unless the declarant is unavailable for trial and the defendant had a prior opportunity to cross-examine the declarant. Statements are testimonial when occurring under circumstances imparting the formality and solemnity of testimony and are given primarily to establish some past fact for possible use in a criminal trial. (People v. Cage (2007) 40 Cal.4th 965, 984.) However, nontestimonial statements, the admission of which does not violate the confrontation clause, are those made, for example, during police interrogation under circumstances objectively indicating that the interrogation's primary purpose is to enable police assistance to meet an ongoing emergency. (Ibid.; Davis v. Washington (2006) 547 U.S. 813, 817.)
Calls made to 911, and at least the initial interrogation conducted in connection with it, are ordinarily not designed primarily to establish or prove some past fact but to describe current circumstances requiring police assistance. (Davis v. Washington, supra, 547 U.S. at pp. 827-828.) Where the nature of the conversation is such that the elicited statements were necessary to resolve an emergency, rather than simply to learn what had happened in the past, the call is nontestimonial. (Id. at p. 827; see People v. Cage, supra, 40 Cal.4th at pp. 982-983.)
Here, both 911 calls concerned an ongoing emergency. After being forced to go with Espinoza, the victim asked bystanders for help. That is precisely what the witness did: she called 911 and described the car and the suspect and victim so that police could find them. As to the second call, dispatch called the witness because officers on the scene were unable to find the victim and wanted additional information. These calls all took place within an hour of the crime. In other cases, admitting evidence of similar 911 calls made shortly after the event did not violate the confrontation clause. (See, e.g., People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1596-1597 [statements made 30 minutes after violent incident admissible]; People v. Corella (2004) 122 Cal.App.4th 461, 464 [victim's statement to 911 made shortly after domestic violence not testimonial].) The statements in the 911 calls here were made to help law enforcement find the victim, who was involved in an ongoing crime situation. The statements therefore were not testimonial. III. Admissibility of prior act of domestic violence
Over Espinoza's objection, the trial court admitted his prior act of domestic violence. In so doing, the trial court did not violate Espinoza's constitutional rights to due process and to a fair trial under the Fourteenth Amendment of the federal constitution.
Generally, evidence of prior criminal acts is inadmissible to show a defendant's disposition to commit such acts. (§ 1101, subd. (a).) Section 1109 provides an exception to this rule. The section provides that in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by section 1101, if admissible under section 352. (§ 1109, subd. (a).)
The trial court here ruled that the prosecutor could introduce evidence of the incident where Espinoza beat the victim after discovering a GPS system in her car. The trial court found that the evidence was not excludable under section 352 because it was probative to a variety of issues and was just one incident. We agree. The prior act evidence demonstrated a pattern of behavior. The uncharged incident was like the charged crimes in that each occurred when the victim and Espinoza were in public, the victim's car was somehow involved, something seemingly minor set Espinoza off, and he hit the victim and pulled her hair. That a defendant has abused the victim frequently and with regularity is more probative than evidence he did so only once or twice before, as such frequency infuses the propensity evidence with probative strength. (People v. Kerley (2018) 23 Cal.App.5th 513, 536.)
Although evidence that Espinoza beat the victim at a hospital was not raised in the pretrial motion, the victim testified about this uncharged incident. Defense counsel objected that he had no notice of this incident. The prosecutor said it was a surprise to her too. However, defense counsel did not otherwise object to the admissibility of the hospital incident or ask for a curative instruction or other remedy. Instead, he asked that the prosecutor be allowed to lead the victim when examined about the GPS incident so that she did not mention any other incidents of domestic violence. Therefore, counsel chose not to object to the hospital incident.
As to counsel's failure to object or otherwise request a curative instruction, we reject Espinoza's related claim that this amounted to ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) We defer to trial counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. (People v. Mai (2013) 57 Cal.4th 986, 1009.) Here, trial counsel could have reasonably believed that the hospital incident was admissible under section 1109, even though it had not been disclosed pretrial. Asking for a curative instruction or one that the discovery had not been timely provided, could have drawn more attention to Espinoza's pattern of conduct. IV. Sufficiency of the evidence of criminal threats
Espinoza next contends there was insufficient evidence to support his conviction of criminal threats. We disagree.
To determine whether evidence is sufficient to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether any rational trier of fact could have found the evidence proved the elements of the crime beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) We draw all reasonable inferences in favor of the judgment and do not resolve credibility issues or evidentiary conflicts. (Ibid.)
To support a conviction for criminal threats, the People must prove: (1) the defendant willfully threatened to commit a crime which would result in death or great bodily injury; (2) the defendant made the statement with the intent it be taken as a threat; (3) the threat, on its face and under the circumstances it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the other person reasonably to be in sustained fear for her safety or for the safety of her immediate family, regardless of whether the defendant actually intended to carry out the threat. (Pen. Code, § 422; People v. Butler (2000) 85 Cal.App.4th 745, 753.)
Espinoza challenges only the third element, whether his threat was sufficiently unequivocal, immediate, and specific to convey to the victim a gravity of purpose and immediate prospect of execution of the threat. In response, we need only repeat Espinoza's threat and the circumstances under which it was made. He threatened to make the victim's life miserable and to kill her. When saying this, he glanced at his gun, which was in open view. The face of the threat and the circumstances under which it was made, coupled with Espinoza's demonstrated history of violence, satisfied the third element of the crime. (See People v. Butler, supra, 85 Cal.App.4th at pp. 753-754.) That the jury acquitted Espinoza of gun possession and found personal use of a gun not true is irrelevant. The jury could still have considered the circumstance of the gun's presence and Espinoza's pointed glance at it in evaluating the criminal threats charge. V. Prosecutorial misconduct
Espinoza contends that the prosecutor engaged in misconduct. We discern none.
The standards regarding prosecutorial misconduct are well-established. A prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor's conduct that does not render a criminal trial fundamentally unfair may be prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) When the claim focuses on the prosecutor's comments before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Ibid.)
Espinoza contends the prosecutor committed three instances of misconduct.
First, the prosecutor failed to disclose a prior act of domestic violence. Propensity evidence must be disclosed 30 days before trial. (§ 1109, subd. (b).) The prosecutor did not comply with that disclosure requirement as to the prior incident of domestic abuse at the hospital. However, as the prosecutor explained, she did not know about this incident and did not know the victim was going to mention it. Therefore, there is no pattern of egregious conduct that infected the trial with unfairness so as to give rise to a due process violation or the use of a deceptive or reprehensible method to persuade the jury. (See People v. Samayoa, supra, 15 Cal.4th at p. 841.)
Second, Espinoza contends that the prosecutor diluted the burden of proof on a charged offense. The issue arose in the context of CALCRIM No. 840, regarding injury to a spouse. The trial court denied the prosecutor's request to modify the instruction to add that bruising is a traumatic condition. The jury was instead instructed that the People had to prove that the injury defendant inflicted resulted in a traumatic condition, defined as a wound, or other bodily injury, whether minor or serious, caused by the direct application of physical force. In closing, the prosecutor argued that a bruise is a traumatic condition under the law, which Espinoza argues somehow lowered the burden of proof. This argument in no way lowered the prosecution's burden of proof. Rather, bruising is a traumatic condition. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; see People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [redness on victim's face constituted traumatic condition].) The prosecutor accurately stated the law.
Third, Espinoza claims that the prosecutor improperly appealed to the jurors' passions when she referred to the "cycle of domestic violence" between the victim and Espinoza. The prosecutor explained what she meant: everything would be fine, but then Espinoza would have outbursts of anger and violence, followed by his apologies and professions of love. Believing him, the victim would go back to him, restarting the cycle. The prosecutor added that the jury could put an end to that cycle and hold Espinoza accountable. She said, "Enough is enough. Hold [Espinoza] accountable."
This was not an improper appeal to the jury's passions or prejudice as opposed to a fair and vigorous comment on the evidence. (See People v. Fields (1983) 35 Cal.3d 329, 362-363.) A prosecutor is given wide latitude so long as argument amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Thomas (2012) 53 Cal.4th 771, 822.) The evidence did show that the victim and Espinoza were in a cycle in which she would go back to him after he abused her.
Nor did the argument improperly refer to facts outside the record by suggesting that Espinoza would continue to be a danger to the victim. Rather, the prosecutor described the cycle of violence in the context of what the evidence showed, i.e., that Espinoza would abuse the victim and apologize, the victim would go back to him, and it would start all over again. In any event, suggesting that a defendant will commit a criminal act in the future is not an inappropriate comment when there is sufficient evidence to support the statement. (People v. Hughey (1987) 194 Cal.App.3d 1383, 1396.)
Finally, we see no error or misconduct in the prosecutor asking the jury to hold Espinoza accountable. (See People v. Covarrubias (2016) 1 Cal.5th 838, 894-895 [prosecutor can tell jurors they are litmus test as to what community will tolerate].) It is not misconduct for a prosecutor to reiterate the jury's function to determine whether the defendant broke any laws. (Id. at p. 894.)
As the prosecutor did not commit misconduct during her argument, Espinoza's related contention that his counsel was ineffective for failing to object to it, fails. VI. Senate Bill No. 1393
Espinoza's sentence included a five-year term for a prior serious felony under Penal Code section 667, subdivision (a)(1). He argues, the People concede, and we agree that remand is necessary so that the trial court can exercise its discretion to strike or to dismiss that term, per recently enacted Senate Bill No. 1393. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
Because we remand the matter for resentencing, we need not address Espinoza's contention he is entitled to an ability pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
LAVIN, J.