P. v. Gragg

Filed 4/8/08 P. v. Gragg CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Carlis Anthony Gragg was convicted after a jury trial of one count of causing sustained fear by threatening death or great bodily injury (Pen. Code,  422). The trial court then found true enhancement allegations that he had previously been convicted of a serious felony (id.,  1170.12) and had served four separate prior prison terms (id.,  667.5, subd. (b)). Sentenced to state prison for eight years, defendant appeals. He contends that the prosecutor erred prejudicially in threatening prosecution of the victim if she recanted in her testimony; and that the trial court erred in (1) rejecting a proposed plea bargain at trial; (2) admitting evidence of the victims 911 calls concerning the threats; (3) failing to redact parts of the 911 calls; and (4) denying a motion for mistrial after a witness committed misconduct by volunteering evidence barred by an in limine order. We shall affirm the judgment.

FACTUAL BACKGROUND

On the afternoon of January 4, 2006, Jade Sprickman telephoned the 911 operator and asked for help, stating her ex-boyfriend (defendant) had called and said he was on his way to kill her and her current boyfriend, adding, Please, please, please! . . . Hurry, hurry, please! Gasping, and every intonation freighted with distress, she said that she had just gotten off the phone with defendant, who threatened that he was on his way to her house. Hes coming to kill me right now. Hes gonna peel me back. When asked where he might be coming from, she said that defendant just got out of prison and she had no idea, that he was in a program, a halfway house, but that he had left it two days earlier.

Officer Jason Rhoads of the Redding Police Department went to Sprickmans apartment. He testified that when he arrived, she was emotionally upset, crying, and very nervous. After meeting with her for 40 to 50 minutes he left.

Sprickman soon telephoned 911 again. She reported that no more than five minutes after the officer left defendant had come to her door and banged on [it] twice about two seconds ago. She told the dispatcher, My [three-year-old] daughter is here. I need somebody here right now. She asked for help in getting to her car so she could go to her moms. Her voice on the 911 tapes conveys anxiety and urgency in requesting police assistance to deal with the reported threats from defendant.

Officer Rhoads returned and found Sprickman upset, she was crying and very nervous, looking up and down the street. Rhoads stood by as she packed and left in her car with her three-year-old daughter.

Joaquin Telez, Sprickmans boyfriend, was at her residence on the afternoon of the 911 calls. He affirmed that someone, whom he believed was defendant, had come to the door and rapped, harder than a regular knock.

Leanna Montrees, a friend of Sprickman since childhood, testified, under Evidence Code section 1109,^[1]that, on July 30, 2005, about 2:30 a.m., defendant entered Sprickmans apartment through a window and angrily punched Sprickman in the face. When she and Sprickman left, defendant followed them in a car and threatened to run Sprickman over if she did not get into the car.

Defendant did not testify.

DISCUSSION

I. Threatened Prosecution of Victim

Defendant contends the prosecutor erred prejudicially in threatening prosecution of the victim if she recanted in her trial testimony. He argues this threat can be inferred from remarks of the trial court and that the threat caused the victim to claim her self-incrimination privilege not to testify, amounting to prejudicial prosecutorial misconduct. The record does not support an inference the prosecutor improperly threatened the victim, and the contention of error has no merit.

Defendant bases his claim of an improper threat on the remark of the trial court that it was informed by the prosecutor, at a meeting not of record, that Sprickman had recanted her accusation at the preliminary examination and potentially needed counsel appointed to advise her concerning possible criminal liability for perjury or for making a false report to police. To prevail on a claim of improper threat, the defense must show that the [prosecutor] engaged in activity that was wholly unnecessary to the proper performance of his duties. (In re Martin (1987) 44 Cal.3d 1, 31.) There is nothing improper in a prosecutors bringing such a matter to the attention of the court; indeed, it is entirely proper performance of the prosecutors duties to do so. (See People v. Harbolt (1988) 206 Cal.App.3d 140, 154-155; People v. Warren (1984) 161 Cal.App.3d 961, 974; cf. People v. Schroeder (1991) 227 Cal.App.3d 784, 788-789.)

II. Rejection of Proposed Plea Bargain at Trial

Defendant contends that the trial court erred in refusing to ratify a proffered plea bargain agreement. He argues that this refusal was an abuse of discretion. However, the rejection was tentative and defendant later withdrew his offer to plead, precluding a claim of error on appeal.

After Sprickman claimed the privilege not to testify, defense counsel informed the trial court that defendant was interested in accepting a plea bargain. The court said that it would seek approval from the judge who presided over the preliminary examination. Thereafter, the court reported that that judge was disinclined to approve the plea. However, the court agreed with counsels request to approach the judge about the matter directly. That afternoon, while the potential bargain was still pending, defendant announced that he was no longer interested in settling the case by accepting the bargain and that he wanted to go forward with a jury trial.

In these circumstances, defendant has forfeited any claim of error. He cannot have his cake and eat it too by pursuing a claim on appeal that the trial court should have approved a bargain he rejected. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  388, p. 439 (Witkin).)

III. Evidence of Victims 911 Calls Concerning Defendants Threats

Defendant contends that the trial court erred in admitting evidence of the victims 911 calls concerning his threats. He argues that the entirety of both calls should have been excluded as inadmissible hearsay barred under the federal Constitutions confrontation clause because (1) they were not subject to the excited utterance hearsay exception ( 1240), and (2) parts of the calls should have been excluded as uncharged misconduct ( 1101), or more prejudicial than probative ( 352). The arguments are unpersuasive and the contention of error is without merit.

A. Were the 911 Calls Inadmissible Under the Confrontation Clause?

Defendant principally argues that the calls should have been excluded under the confrontation clause because the circumstances show Sprickman made her statements to be used to prosecute him.^[2] We are not persuaded.

In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 194] (Crawford), the United States Supreme Court held that the confrontation clause of the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Emphasis added.) In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis), the court applied Crawford to the 911 call context. Davis holds that, in that context, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial. (People v. Cage (2007) 40 Cal.4th 965, 984.)

Defendant submits that viewed through the Davisframework, the trial court erred in characterizing Sprickmans 911 statements as nontestimonial. He argues that Sprickmans purpose was revenge and retribution rather than to deal with a contemporaneous emergency. He suggests that we are free to make this determination as part of a de novo review of the totality of the circumstances underlying the constitutional question, citing People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175.^[3]

The question of Sprickmans motivation is one of historical fact. Even when preliminary to a de novo review of a mixed question of fact and law, where facts are historical, amenable to dispute and resolution by trial fact finding, a reviewing court must, of course, apply a deferential standard of review to the trial courts factual findings. (People v. Cromer (2001) 24 Cal.4th 889, 900; see also, e.g., People v. Tatum (2003) 108 Cal.App.4th 288, 296.) Thus, the ordinary presumptions concerning the judgment (see 9 Witkin, Cal. Procedure, supra,  349, pp. 394-396) apply with respect to the question of Sprickmans state of mind.

In any event, were we free to revisit such facts, after hearing the recording of the calls, we would say that she was calling, in Daviss words, because she was facing an ongoing emergency. (Davis, supra, 547 U.S. at p. 827 [165 L.Ed.2d at p. 240.) To continue to borrow from Davis: Although one might call 911 to provide a narrative report of a crime absent any imminent danger, [Sprickmans] call was plainly a call for help against a bona fide physical threat. [T]he nature of what was asked and answered in [this case], again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. . . . [] We conclude from all this that the circumstances of [Sprickmans] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. (Id. at pp. 827-828 [165 L.Ed.2d at p. 240].) The calls were contemporaneous with the ongoing threats and the questions and responses were about information needed to assess the threats and triage the police response to the reports. Accordingly, the trial court did not err in overruling defendants Crawford objection.

B. Were the 911 Calls Admissible Hearsay as Excited Utterances?

Defendant argues that the trial court erred in granting the prosecution motion in limine to admit the 911 calls under the excited utterance hearsay exception.^[4] He rehearses his arguments under his Crawford claim that the circumstances show Sprickman was contriv[ing] and misrepresent[ing] and belie the notion that [she] was primarily or solely responding to an emergency, and instead show her concerned with embroiling [defendant] in legal troubles. For the reasons previously given, we reject this claim.

C. Were Parts of the 911 Calls Inadmissible Under Sections 1101 or 352?

Lastly, defendant argues that the trial court erred in failing to bar numerous statements of Sprickman in the 911 calls under sections 1101 or 352. None of the numerous subarguments is persuasive.

Defendants argument is somewhat of a swarm. He cites to a few specific objections in the record to statements in the 911 calls on sections 1101 and 352 grounds made at trial, and argues the objections were incorrectly overruled, but in the main, he seeks to apply those objections on appeal to other portions of the 911 calls he finds objectionable.

The only generalized objection he cites at trial was to the entire second 911 tape on the ground that it contained various inaudible portions that would promote speculation by the jury. Defendant does not pursue this objection on appeal. Assuming this objection was based on section 352, it does not permit defendant to tender new arguments on appeal based on section 352. Objections actually made in the trial court, we will address; those not made are forfeited.^[5] ( 353.)

As best we can discern, that leaves defendant with a single, tenable claim. In the first 911 call, the following exchange occurred:

[OPERATOR]: How far away does he live?

[SPRICKMAN]: I dont . . . , he dont live anywhere. He just got out of prison. I dont know where hes at.

[] . . . []

[OPERATOR]: Okay. So we dont know where he might be coming from?

[SPRICKMAN]: I dont know where hes at. He was in a program. He was in a halfway house and he left it like two days ago.

On appeal defendant claims this violated sections 1101 and 352. At trial he only made the latter objection. The trial court overruled the objection to the reference to prison on the ground that it was significantly probative to an understanding of Sprickmans fear, her appreciation of the gravity of the threat, and defendants willingness to carry it out, as it was connected to her assertion that she had moved while he was in prison to avoid him, but that he had tracked her down.

Contrary to defendants appellate argument, it is more chilling to have been tracked down from concealment by an estranged former sex partner who makes a death threat than if the threat arose in an ongoing relationship. It is also more chilling that this stalking behavior of a former sex partner immediately followed a substantial period of incarceration. Both considerations are relevant to the charge under Penal Code section 422, whether there was an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety. (Pen. Code,  422, 1st par.; see generally Evid. Code,  1370.)

In view of this probative value, the trial court had discretion to overrule an objection under section 352. As there was relevancy for a purpose other than disposition to commit crimes, section 1101 would have been inapplicable.

IV. Motion for Mistrial

Defendant contends that the trial court erred in failing to grant a motion for a mistrial after Montrees testified that defendant also struck her in the earlier domestic violence incident with Sprickman. He argues that a mistrial was required because Montrees committed prejudicial misconduct in volunteering evidence of uncharged misconduct she knew was barred by an in limine order. The argument is unpersuasive and the contention of error is without merit.

Montrees was told not to go into the fact that defendant hit her in this incident. Nonetheless, she uttered this information in response to the prosecutors chronological question of what happened next during the incident. The matter was promptly stricken and the ensuing defense motion for a mistrial was denied. She was pressed on cross-examination about her claim that her recollection was better now than when she gave a less detailed account earlier. Eventually, she implied the reason was that she had mulled it over a lot because she had been hit by a man. The court immediately told the jury the remark was stricken and must be disregarded.

Although most cases involve prosecutorial or juror misconduct as the basis for [a mistrial] motion, a witnesss volunteered statement can also provide the basis for a finding of incurable prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565.) . . . Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Haskett (1982) 30 Cal.3d 841, 854.) (People v. Williams (1997) 16 Cal.4th 153, 211.) A trial court should grant a mistrial only if the defendant will suffer prejudice that is incurable by admonition or instruction and in making this assessment a trial court has considerable discretion. (E.g., People v. Davis (2005) 36 Cal.4th 510, 553-554.) A motion for mistrial should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.)

Here defendant argues Montreess statements were highly prejudicial, inter alia, because they portrayed him as someone with a violent nature of the type at issue in this case. He submits the prejudice was incurable because her close relationship with Sprickman and defendant gave the statements high credibility.

The incremental prejudice of Montreess improper statement was small. She testified properly, in any event, that defendant had struck and threatened to run down Sprickman during the prior incident. The additional claim that he also struck Montrees was not a factor that significantly increased the damage of her testimony. Indeed, the admonishment incidents could have undercut her credibility by making her appear too partisan and out to get him at all costs. The admonitions were prompt and we discern no abuse of discretion in denying the motion for mistrial.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

SIMS , Acting P.J.

MORRISON , J.

^[1] Undesignated statutory references are to the Evidence Code. Section 1109, subdivision (a)(1) provides: Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

^[2] Defendant also argues that his claim for a confrontation clause violation is enhanced because Sprickman was coerced into claiming her privilege against testifying at trial. It suffices to note that we have rejected the underlying premise, above. Moreover, the point was not raised as a part of the constitutional claim below and would be forfeited. ( 353.)

^[3] Defendant also urges a de novo review of Sprickmans motivation under the rubric of trustworthiness. He argues that even if within a firmly rooted hearsay exception for excited utterances, this court must acknowledge, nonetheless, that the statements lack adequate indicia of reliability, and ought to be excluded on that basis. He points to no objection making this specific ground of objection in the trial court.

The trustworthiness inquiry defendant urges is taken from confrontation clause cases before Davis, which applied the confrontation clause to nontestimonial hearsay and allowed it if it met the criterion of firmly rooted hearsay exceptions or if it was particularly reliable. (See, e.g., Lilly v. Virginia (1999) 527 U.S. 116, 124-125 [144 L.Ed.2d 117, 127].) Defendants argument fails to note the disjunction, firmly rooted hearsay exceptions were not subject to any independent trustworthiness analysis. More importantly, Davis overturns this aspect of the prior case law. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. (Davis, supra, 547 U.S. at p. 821 [165 L.Ed.2d at p. 237].)

We reject the unsupported implication that evidence‑‑ admissible under the hearsay exceptions allowed by the common law in 1791, as permitted under Crawford‑‑is subject to further case-by-case exclusion for trustworthiness anytime that it might be useful to be able to cross-examine the hearsay declarant.

^[4] Section 1240 provides: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

The exception can extend to spontaneous utterances elicited from the speaker by extensive questions after the exciting event during a 911 call. (See People v. Farmer (1989) 47 Cal.3d 888, 903-904, disapproved on different grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

^[5] Defendants assertion that defense counsel objected pursuant to sections 1101, subdivision (b) and 352 to everything after [Sprickman] tells the operator Im not panicked anymore, is unsupported in the record.