Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD192917 Laura P. Hammes, Judge.
BENKE, Acting P. J.
Daniel Elijah Saddler was found guilty of inflicting corporal injury on a spouse and felonious assault. As to each conviction it was found true he inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e). The jury was unable to return a verdict on a charge of torture. It was found true Saddler suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and a prior strike conviction within the meaning of section 667, subdivisions (b) through (i). Saddler was sentenced to a prison term of 18 years. He appeals, arguing the trial court failed to instruct on all the elements of the crime of spousal abuse and concerning the requirement of jury unanimity, erred in admitting a statement under the spontaneous statement exception to the hearsay rule, and committed sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
1. Crimes
At around 4:00 p.m. on August 8, 2005, Marqueta Rodgers was sitting in her car at a red light. She noticed a car jerking forward in the left lane next to her. Rodgers looked at the car and saw its black male driver, who she later identified as appellant, forcefully strike with his fist a white woman sitting in the passenger seat. He struck the woman several times in the head and face with his fist. The vehicle ran the red light. Rodgers called the police, related what she saw and gave the operator the license plate number of the car.
About 6:00 p.m. that day Officer David Cupples was sitting in a patrol car when a man ran up to him and stated: "There's a man using a woman as a punching bag under the bridge." Driving in the direction indicated by the man, Cupples saw a car parked under a bridge. The car was later identified as having the license plate number of the car Rodgers saw at the red light. As Cupples drove by, a man in the driver's seat, appellant, looked at him intently. A white woman in the passenger seat kept her head turned from the officer.
As Cupples parked his car behind appellant's, appellant got out and staggered towards the officer. It appeared appellant was drunk. At the officer's direction, the two returned to appellant's car. Cupples walked to the passenger window. The woman in the passenger seat, Victoria Saddler (Victoria), had a bloody and swollen face. Her eyes were nearly swollen shut and were dark red. Victoria had cuts under both eyes and blood was running down her cheeks. She had bruising, cuts and swelling about her neck and face.
Appellant told the officer Victoria was his wife and that she was mugged by a woman. The officer noticed appellant had cuts on both hands. The officer placed appellant in his patrol car and talked to Victoria. Victoria appeared frightened. She told Cupples that appellant did not hurt her, that a man mugged her. She refused to say anything else. When paramedics arrived, Victoria at first vehemently refused to go the hospital, saying she wanted to stay with appellant. Eventually, she agreed to accompany the paramedics to the hospital for treatment.
Appellant was transported to the police station and was interviewed by Detective Bill Puente. Appellant told the officer that while he and Victoria were sitting in the car under the bridge, a large woman walked up and began punching Victoria in the face. The officer told appellant he did not believe him and asked if appellant was angry with Victoria. Appellant replied he found out five days before that Victoria was "fucking the neighbor" and he was angry. He admitted hitting Victoria a few times in the face but stated he did not hit her hard. When the officer asked about the swelling on appellant's right hand, he stated it was recently operated on.
Puente interviewed Victoria at the hospital. She told the officer she was mugged by a man but refused to give details. The officer told Victoria appellant claimed she was attacked by a woman. Victoria agreed that was what happened but again refused to give details except to say that the woman was apparently jealous because she saw Victoria with appellant. The officer told Victoria that a witness reported seeing a woman being beaten by a man in appellant's car. Victoria stated if a witness saw that then she was the woman in the car and it did happen. Victoria stated, however, that she would not testify in court that appellant assaulted her. Victoria told Puente that appellant hit her but she did not want the officer to document her statement. She stated she was afraid of appellant. The officer, noting bruises on Victoria's body, asked if appellant beat her in the last several days. She stated she bruised easily and did not want to talk about it.
2. Injuries
Victoria was transported by paramedics to the hospital and was examined by a doctor. Victoria was uncooperative with hospital staff but stated she was assaulted by a stranger. Victoria had a fractured nose and seven fractures spread over four vertebra in her lower spine. The doctor concluded the nose fracture was fresh. The spine fractures occurred within days. Victoria had recent injuries to her face resulting in swelling and bruising. Given the appearance of the injuries to Victoria's face, the doctor concluded they occurred within a day. Her eyes were bloody and she had recent cuts on her face. There were bruises on her back that appeared several days old. Victoria also had multiple rib fractures that appeared to be healing. The doctor believed the rib fractures occurred about two to four weeks before she came to the hospital.
3. Victoria's Trial Testimony
Victoria testified as both a prosecution and defense witness. She stated she was married to appellant for a year. On the day of the incident appellant had two or three beers and the couple decided to go for a drive. Victoria denied that she and appellant argued that day about her relationship with their neighbor Lee. Indeed, she denied that appellant ever physically abused her. During the drive they stopped at a market and Victoria went in to buy appellant a beer. As she returned, a man asked her for change. When she refused, the man pushed her to the ground and punched and kicked her about the head, ribs and upper body. Victoria did not call for help and the man eventually walked away. Appellant was angry about this and he and Victoria drove around looking for the man. However, they did not call the police.
The couple stopped at a second market so appellant could get more beer. As appellant started to get out of the car, a woman walked up to Victoria's open window and yelled at her. The woman asked appellant why he was with Victoria and not her. The woman then started punching Victoria. Appellant tried to get out of the car to help Victoria but appellant was so intoxicated he fell down. As Victoria got out of the car to assist him, the woman continued punching her. The woman eventually walked away. Victoria helped appellant into the car and the two drove about looking for Victoria's two assailants. While Victoria realized that after the two assaults she was badly injured, the couple did not seek medical assistance or report the attacks to the police. Eventually, they parked under a bridge where they were contacted by the police.
Victoria testified that her rib and spine fractures occurred during the attacks on August 8, 2005. She was unaware of having any fractured ribs before that date. She also stated she had no bruises before that morning. She stated appellant was never violent with her.
A month after she claimed to have suffered the rib and spine fractures, Victoria saw a doctor because of continuing pain. She testified she lied to the doctor, telling him she was in a motorcycle accident. Victoria stated she lied to the doctor so she would get an objective opinion concerning her condition. Victoria stated that other than the assaults on August 8, she suffered no traumatic injury in August or July.
Victoria, presumably to explain Rodgers's observation of appellant beating her, stated that appellant was angry and was gesturing wildly as the two drove about.
B. Defense Case
While admitting that Victoria was badly beaten on August 8, 2005, appellant argued her injuries were caused by her unknown male and female attackers.
DISCUSSION
A. Course of Conduct Instruction
Appellant, in a confusing argument, contends the crime of spousal abuse charged in count 2 was prosecuted as a continuing course of conduct offense, i.e., the crime was based not on the commission of a single act or set of acts committed on a single occasion but on a series of acts occurring over a relatively lengthy period of time. Appellant argues that when so prosecuted, the fact of the crimes' continuing nature is an element of the offense. He argues the trial court erred in failing to instruct concerning that element and in misdescribing that element by failing to instruct the jury was not required to agree unanimously on the acts demonstrating the course of conduct.
1. Background
The information alleged the torture in count 1, the spousal abuse in count 2 and the felonious assault in count 3 all occurred "[o]n or about August 8."
In her opening statement the prosecutor told the jury the case was about a "prolonged beating." She stated the events occurred on August 8, 2005. She noted that at about 3:15 p.m. on that date appellant was seen by a witness beating Victoria. About three hours later, an officer was told by a second witness that a man was beating a woman under a bridge. When the officer went to the scene, he found appellant and Victoria in a car. The officer noted Victoria had severe injuries to her face and that appellant's hands were cut and swollen. The prosecutor did not mention during her opening statement that Victoria suffered fractures to her face, ribs or spine.
In defense counsel's opening statement, he told the jury everything in the case occurred on August 8.
Victoria testified in the prosecution case that she was severely injured on August 8. The first mention in the case that Victoria had rib or spine injuries came during her direct examination in the prosecution case. Those injuries were the reason she gave for seeing a doctor a month after the incident. Victoria testified those rib and spine injuries occurred on August 8.
During cross-examination by defense counsel, Victoria stated that the man who attacked her kicked her in the back and rib cage. She stated she received a medical report from the emergency room noting she had suffered fractured ribs. She testified she had no fractured ribs before August 8.
Following Victoria's testimony, the emergency room doctor who treated her on August 8 testified on direct examination about her condition when she arrived at the hospital. Among other injuries, he noted she had a fractured nose, numerous healing left side rib fractures and fractures to four lumbar vertebrae. While the prosecutor asked about the age of Victoria's cuts and bruises, she did not ask about the age of the rib and spine fractures. The doctor stated the bruises on Victoria's back were several days old.
On cross-examination the doctor stated in more detail why he believed the bruises on Victoria's back were old. Defense counsel also explored more thoroughly the doctor's opinion concerning the age of Victoria's rib and spine fractures. The doctor stated the rib fractures were partially healed and the dating of such injuries was more exact than the dating of bruises.
The prosecutor started her opening argument by stating Victoria was a victim on August 8. In relating the facts of that victimization, the prosecutor began by discussing the testimony of Rodgers concerning appellant beating a woman in car on August 8. She then talked about the statement of the witness who saw a man beating a woman under a bridge on August 8.
In discussing why Victoria would recant her statement to Detective Puente that appellant struck her on August 8, the prosecutor argued Victoria feared appellant. In noting how severe Victoria's injuries were, she cited not only the nose fracture but also the rib and spine fractures. While the prosecution's evidence was that these injuries occurred before August 8, the prosecutor was clearly suggesting appellant inflicted them.
Appellant was charged with the crime of torture. The domestic violence and assault counts each included a great bodily injury enhancement. As to those charges, the prosecutor noted Victoria's multiple injuries, including her rib and spine fractures, attributed them to appellant and stated they were evidence of torture and the infliction of great bodily injury.
In closing argument, defense counsel argued, based on Victoria's testimony, all of Victoria's injuries, including the rib and spine fractures, occurred on August 8 and were the result of her being mugged that day by two unknown persons.
The trial court gave no instruction concerning jury unanimity. The court did instruct in the terms of Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 207 that it was alleged the crime occurred on or about August 8, 2005. The court explained the prosecution was not required to prove the crime occurred exactly on that day but only that it happened reasonably close to that day.
2. Law
a. Spousal Abuse
It is a crime to inflict on a spouse corporal injury resulting in a traumatic condition. Within the meaning of the section 273.5, subdivision (a), a traumatic condition is a condition of the body, e.g., a wound or internal or external injury, whether of a minor or serious nature, caused by physical force. (§ 273.5, subds. (a), (b).)
b. Continuous Course of Conduct Offenses and Jury Unanimity
In criminal cases jury verdicts must be unanimous. Generally, if one criminal act is charged but the evidence tends to show more than one such act, the prosecutor must either select the act relied upon or the jury must be instructed that it is required to agree unanimously on a single criminal act supporting the single charge. No such election or instruction is required, however, when the multiple acts constitute a continuous course of conduct. Such a course of continuing conduct is of two types. First, when the acts are so closely connected in their commission that they form part of one transaction and, second, when the statute on which the charge is based contemplates a continuous course of conduct over a period of time. (People v. Napoles (2002) 104 Cal.App.4th 108, 114-117.) In a continuous course of conduct case, the jury is required merely to agree the course of conduct occurred and not on any individual act and no prosecutorial election or unanimity instruction is required. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1296.)
The crime of spousal abuse can be prosecuted as a single act offense or as a continuous course of conduct offense based on closely connected acts or as statutorily defined continuous course of conduct offense. (People v. Healy (1993) 14 Cal.App.4th 1137, 1139-1140; People v. Thompson (1984) 160 Cal.App.3d 220, 225-226.)
c. Accusatory Pleadings and the Time of the Offense
The precise time on which an offense was committed need not be stated in the accusatory pleading. The crime may be alleged to have occurred at any time before the filing of the pleading except when the date of the offense is a material element of the offense. (§ 955; see People v. Jones (1990) 51 Cal.3d 294, 316-322.)
3. Discussion
The trial court did not err in failing sua sponte to instruct that spousal abuse as prosecuted in this case was a continuous course of conduct offense. The prosecutor charged appellant with only one count of spousal abuse occurring on or about August 8. The trial court instructed the jury according to CALCRIM No. 207 that the People need not prove the crime took place on August 8 but it is sufficient to prove it took place "reasonably close" to that date. In selecting the position that the case was about "one long beating," the district attorney elected to prosecute the case as a continuing course of conduct case. Generally, courts should not give "nonunanimity" instructions in continuous course of conduct cases. (People v. Napoles, supra, 104 Cal.App.4th at p. 119, fn. 7; see comments to CALCRIM No. 3500 at p. 1115.)
Appellant, however, contends, without meaningful citation to authority, the continuous course of conduct aspect of some offenses is an element of those offenses and, therefore, a trial court is required to instruct concerning that element. We disagree. Whether an offense is accomplished by a single act or a continuous course of conduct does not change the elements of the underlying offense. For example, the crime of spousal abuse can be committed either in a single act or by a course of conduct. The elements of the willful infliction of corporal injury resulting in a traumatic condition are the same in each. If the charge is based on a single act, the jury must agree on the single act that accomplished the crime. If the charge is based on a continuous course of conduct, the jury must merely agree a course of conduct occurred that accomplished the crime but need not agree on any particular act or acts. This issue of required unanimity does not create additional elements.
As we have noted, the claim of spousal abuse in this case was always presented as a continuing course of conduct offense. What creates some confusion, however, is that while the case was always presented on a continuous course of conduct theory, the prosecution included in the operative course of conduct injuries occurring prior to August 8. Given the proximity in time of those injuries, two to four weeks prior to August 8, it is not unrealistic that the jury concluded those injuries occurred on or about August 8. (See generally, People v. Jennings (1991) 53 Cal.3d 334, 358.)
We do not know why the case seems to have expanded from a claimed continuous course of conduct on August 8 to a course of conduct covering perhaps weeks. We conclude, in any event, the apparent change is of no significance. Appellant did not object to the prosecutor's use of the rib and spine fractures as part of the continuous course of conduct. Moreover, this case was a credibility contest. If Victoria was believed, appellant would have been acquitted. Victoria testified that all of her injuries, including the rib and spine fractures, were the result of her being assaulted by strangers on August 8. Had she not so claimed, it would have been necessary for her to concoct two additional serious assaults or serious accidents to explain the earlier injuries. Any hope of being believed would have been further lessened by the improbability of that claimed series of events. The jury, not unexpectedly, disbelieved her and instead concluded she was assaulted by appellant. The serious injuries inflicted on August 8, including the fractured nose, alone would without doubt have resulted in appellant being convicted of spousal abuse and felonious assault. We conclude the trial court was not required to give either unanimity or a nonunanimity instruction, and in any case the absence of such instructions, in light of the jury's rejection of the only defense offered as to all injuries, was by any test harmless. (See People v. Diedrich (1982) 31 Cal.3d 263, 283; People v. Napoles, supra, 104 Cal.App.4th at pp. 119-120.)
B. Unanimity and the Great Bodily Injury Enhancements
Again, in a confusing argument appellant contends the trial court erred in failing to instruct sua sponte that the jury was required to agree unanimously on the single act supporting the great bodily injury allegations attached to both the spousal abuse and felonious assault counts.
Appellant bases his argument on the claim the prosecutor offered both a single incident and continuing course of conduct theory in support of conviction of the spousal abuse and felonious assault counts as well as the great bodily injury allegations attached to each. He contends that because the jury could have relied on the single incident theory, the trial court was required to instruct that if it did, the jury was required to unanimously agree on at least one single incident.
As noted above, we do not agree. This case was always prosecuted based on the theory that appellant engaged in a continuing course of physical abuse, and the jury was instructed in conformity with this theory. Moreover, as we have noted, this case turned on Victoria's credibility. If Victoria's story that all her injuries, including the rib and spine injuries, occurred on August 8 and were inflicted by strangers, appellant would have been acquitted. The jury clearly disbelieved her and concluded she was assaulted by appellant. It was certainly the prosecution's position that all of Victoria's injuries, whenever suffered, were inflicted by appellant as part of a continuing pattern of physical abuse, and that continuous course of conduct resulted in great bodily injury. That being the case, the trial court was not required to give a unanimity instruction as to the great bodily injury allegations.
C. Hearsay Evidence
Appellant argues the trial court erred in admitting pursuant to the spontaneous declaration exception to the hearsay rule the statement of an unidentified witness to a police officer that a man was "using a woman as a punching bag under the bridge." Appellant asserts the trial court erroneously admitted the statement because it did not qualify as a spontaneous declaration and because pursuant to Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] the statement was testimonial and, therefore, inadmissible even if coming within an exception to the hearsay rule.
1. Background
By trial brief, the prosecutor noted her intention to offer pursuant to the spontaneous declaration exception to the hearsay rule the statement of an unknown witness to a police officer that a man was using a woman as a punching bag under a bridge. The resulting investigation led the officer to appellant and Victoria. The prosecutor argued the spontaneous statement was nontestimonial and not excluded by Crawford.
At a hearing, defense counsel noted the spontaneous declaration exception requires the statement describe an event perceived by the declarant. Counsel argued there was no evidence the declarant actually perceived a man hitting a woman under a bridge. Defense counsel also argued the statement was testimonial and, therefore, inadmissible under Crawford.
The trial court concluded that based on the nature of the witness's statement and the urgent manner in which it was communicated, it was reasonable to conclude the witness actually saw a man beating a woman under a bridge. The trial court did not directly rule on the Crawford issue.
2. Delarant's Perception
Appellant notes Evidence Code section 1240 makes admissible a hearsay statement describing an event perceived by the declarant made spontaneously while the declarant was under the stress of excitement cause by the perceived event. Appellant argues the unknown witness's statement to the officer was brief and was insufficient to prove the witness actually saw the event described.
The determination whether a witness perceived the event described is a factual one and we uphold the trial court's conclusion if it is supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 235-236.) Direct proof is not required that the declarant actually witnessed the event; a reasonable inference is sufficient. The conclusion that a declarant perceived an event, however, must be based on more than mere speculation and conjecture. (People v. Provencio (1989) 210 Cal.App.3d 290, 302-303.)
The evidence here was sufficient to support the trial court's conclusion that the unknown declarant actually saw a man beating a woman. Contrary to appellant's claim, this case is not controlled by Ungefug v. D'Ambrosia (1967) 250 Cal.App.2d 61, 66-68. In Ungefug an ambulance driver reported the statement of an unknown declarant standing in a crowd of onlookers concerning how an accident occurred. There was no evidence the declarant actually saw the accident occur and was not simply reporting comments made by others in the crowd. (See People v. Provencio, supra, 210 Cal.App.3d at pp. 302-303.)
In the present case, it was reasonable to infer the unknown declarant saw the event reported to the officer. The declarant "with a sense of urgency" got out of his car and ran up to the officer to report the incident. He was not part of a crowd of onlookers who may have communicated among themselves concerning what happened and who was merely reporting some collective conclusion not necessarily based on personal perception. Substantial evidence supports the trial court's conclusion that the unknown declarant actually perceived the incident reported.
In any event, any error in admitting the statement was harmless. While the declarant's statement was useful to the prosecution, it was clearly not essential. That appellant was severely beating Victoria was amply shown by other compelling evidence. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
3. Right of Confrontation
Appellant argues the admission of the declaration here violated his Sixth Amendment right to confront the witnesses against him. The confrontation clause excludes "testimonial" hearsay statements even if otherwise admissible under an exception to the hearsay rule. (Crawford v. Washington, supra, 541 U.S. at p. 51.)
Statements are testimonial in nature when made in the course of a police interrogation under circumstances where there is no ongoing emergency and the primary purpose of the interrogation is to prove past events potentially relevant to a later criminal prosecution. (Davis v. Washington (2006) 547 U.S. __, __ [126 S.Ct. 2266, 2273-2274]; People v. Ledesma (2006) 39 Cal.4th 641, 709.)
The statement made by the declarant here was not the product of an interrogation and was not testimonial in nature. It was properly admitted by the trial court.
D. Upper Term Sentencing
The trial court imposed an upper term on both appellant's conviction for spousal abuse and on the great bodily injury allegation found true as to that charge. Citing Cunningham v. California (2007) 549 U.S.___ [127 S.Ct. 856]; 166 L.Ed.2d 856, appellant argues the court erred in doing so because the aggravating factors cited in support of such imposition were not found true by a jury.
1. Background
The trial court found true allegations of two prior felonious assault convictions.
As factors in aggravation with regard to the spousal abuse charge, the trial court noted appellant's prior convictions and the failure of appellant to be reformed by prison terms. The court noted appellant's prior crimes were for assaults and that appellant showed no remorse.
As to the great bodily injury allegation, the trial court cited as the single factor in aggravation the severity of the injuries inflicted.
2. Discussion
In People v. Tu (2007) 154 Cal.App.4th 735, 744, the court stated: "Our Supreme Court just handed down its opinion in Black II [People v. Black (2007) 41 Cal.4th 799], on remand from the United States Supreme Court for reconsideration in light of Cunningham. There, the court held that 'so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. . . . [¶]. . . . Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not "legally entitled" to the middle term sentence, and the upper term sentence is the "statutory maximum." ' [Citation.] Thus, the issue in each case, including the present case, 'is whether the trial court's factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.' [Citation.] Concluding, the Black court stated: '[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.' [Citation.]"
A basis for the trial court's imposition of the upper term as to the spousal abuse charge was appellant's recidivism. That being the case, the court properly combined that factor with other non recidivist factors to impose the upper term on the offense.
The only factor the trial court cited as a basis for imposition of the upper term on the great bodily injury enhancement was the severity of the injuries imposed. Under Cunningham that was an improper ground for imposing the aggravated term, and appellant's sentence as to the great bodily injury enhancement is reversed.
E. Double Jeopardy
Citing People v. Sloan (2005) 126 Cal.App.4th 1148, appellant argues his conviction for felonious assault must be vacated. He argues his convictions for both spousal abuse (§ 273.5, subd. (a)), which has as an element an infliction of a corporal injury resulting in a traumatic condition, and which included a finding of great bodily injury (§ 12022.7, subd. (e)), and his conviction for felonious assault (§ 245, subd. (a)(1)), which also included a finding of great bodily injury, arose from the same indivisible act, and conviction on both, therefore, violated the double jeopardy clause.
The prison term on the felonious assault charged was stayed pursuant to section 654.
Our Supreme Court granted review in Sloan, reversed the Court of Appeal and rejected the argument now made by appellant. (People v. Sloan (2007) 42 Cal.4th 110, 113-114.)
DISPOSITION
The imposition of the upper term for the great bodily injury enhancement in count 2 is reversed. In all other respects the judgment is affirmed.
I CONCUR:, IRION, J.
I concur in the judgment only.
McINTYRE, J.