P. v. Gill

Filed 10/1/07 P. v. Gill 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

Defendant Richard Daniel Gill waived his right to a jury trial, and the trial court found him guilty of assault with a deadly weapon (a wooden TV tray) by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))^[1]and inflicting corporal injury upon a cohabitant ( 273.5) and not guilty of first degree residential burglary ( 459). The court also found true allegations defendant used a deadly weapon in the commission of the crime of corporal injury upon a cohabitant ( 12022, subd. (b)(1)), inflicted great bodily injury in circumstances involving domestic violence in the commission of both offenses ( 12022.7, subd. (e)), and served three prior prison terms ( 667.5, subd. (b)).

The trial court sentenced defendant to 12 years in prison, consisting of the upper term of four years for inflicting corporal injury upon a cohabitant, plus the middle term of four years for the great bodily injury enhancement, one year for the weapons enhancement, and one year for each of the three prior prison terms. Sentence for the assault was stayed pursuant to section 654.

On appeal, defendant contends (1) the trial court erroneously admitted statements made by the victim to a police officer at the crime scene, (2) there is insufficient evidence to support his conviction for inflicting corporal injury upon a cohabitant, and (3) should his conviction for inflicting corporal injury upon a cohabitant be reversed, the weapons enhancement must be stricken. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Late on the night of August 6, 2005, or early the next morning, Amanda Behlen was sitting in her room when she heard a loud noise. She looked out the window and saw a man on a motorcycle pull up to the house across the street (88 Artesia Drive) and look inside a van parked in front of the house. As he did so, Laurie Cantwell came out of the house and stood on the porch. The man and Cantwell yelled at each other, and Cantwell ran back inside the house and closed the door. The man attempted to open the door then kicked it down. Behlen told her mother to call the police, and her mother did so.

Behlen continued to watch the house across the street and saw the man come out of the house several times, appear to look for something in the front yard, and return to the house. On some of those occasions, Cantwell also came outside. Both appeared angry, particularly the man. Cantwell did not appear to be injured. The man eventually drove off in the van.

After the man left, Cantwell came outside. She looked dazed and confused and appeared to be injured. Her hand was wrapped in a towel, which she held to her chest, and she had what appeared to be a cut on her head or ear and blood on her face and neck.

At 1:17 a.m., on August 7, 2005, Officer Curtis Prosise with the Chico Police Department received a report of a domestic dispute at 88 Artesia Drive. He arrived six or seven minutes later and saw Cantwell walking away from the area of 88 Artesia. As he approached her, he saw she was crying and had blood in her hair and on her face and shirt. He also observed that her left hand was wrapped in a towel, which she clutched to her chest.

Officer Prosise asked her what happened, and she said her finger had almost been cut off. She then stated she was fearful and didnt want to tell [him] what happened because she was worried about being hurt worse. He responded that other police officers were on their way, . . . as well as fire and ambulance, medical personnel, and that she was going to be okay, [and] that she could talk to [him]. He again asked her what had happened, and she told him that her boyfriend, Danny, had hit her with a table. At some point, he asked her where Danny was, and she said he had left in their 1970s . . . brown van. When asked where she lived, she said she was currently transient and was staying in a motor home or recreational vehicle just outside Chico.

After speaking to Cantwell, Officer Prosise went inside the house at 88 Artesia Drive. The door jam was broken into pieces on the floor. There was a wooden table or TV tray in the southeast bedroom that had been broken into pieces, some of which had sharp edges and exposed screws. One piece had what appeared to be blood and hair on it.

Cantwell was taken to Enloe Medical Center where she was treated by Dr. Bruce Aiken. She had a laceration on her head and a nearly circumferential laceration to her left index finger that extended down to and including the sheath around the tendon. She told Dr. Aiken her live-in male friend accosted her with a wood food tray approximately 30 minutes earlier.

Carly Mund lived at 88 Artesia Drive at the time of the incident. She was in the garage when she heard a bunch of pounding noises and loud voices. She went inside the house and saw defendant run outside with a knife as Cantwell sat in a recliner screaming for someone to call an ambulance. Cantwells head was bleeding, and she said her finger was coming off. Mund saw the van drive away about a minute or so after defendant ran out of the house.

Brenda Metz, Cantwells sister, testified she and Cantwell grew up with defendant, who goes by the name Danny. Cantwell and defendant had been [b]oyfriend, girlfriend for a couple years and had lived together at defendants mothers home and in a motor home.

Cantwell was unavailable at trial.

DISCUSSION

I

In Crawford v. Washington (2004) 541 U.S. 36, 68 [158 L.Ed.2d 177, 203], the United States Supreme Court held that the confrontation clause prohibits the admission of an out-of-court statement that is testimonial in nature unless the declarant is unavailable and the defendant had a prior opportunity for cross- examination. The court declined to specify which statements are testimonial, but explained that the term applied, at a minimum, to prior testimony at a preliminary hearing, before a grand jury, and at a former trial, and to police interrogations. (Ibid.)

Over defendants objections, the trial court here allowed Cantwells statements to Officer Prosise to be introduced into evidence. The court ruled the statements were not testimonial and were admissible as an exception to the hearsay rule under [Evidence Code section] 1240 . . . .^[2]

After defendants trial, the United States Supreme Court decided Davis v. Washington (2006) 547 U.S. ___ [165 L.Ed.2d 224, 234-235] (Davis), which explored the dichotomy between testimonial and nontestimonial statements in the context of statements made by victims of domestic violence during police interrogations. The case was a consolidation of two separate domestic violence criminal convictions. In Davis, the court determined that the statements of a victim in an emergency call to a 911 operator were not testimonial, and thus the tape recording of the call could be heard by the jury without violating the defendants right to confrontation. (Id. at pp. ___ [165 L.Ed.2d at pp. 239-241].) In the second case, Hammon v. Indiana, on the other hand, the court found that the victims statements to an interrogating officer who arrived on the scene after a domestic altercation was over and the emergency had passed were testimonial. (Davis, supra, at pp. ___ [165 L.Ed.2d at pp. 241-242].) In distinguishing between the two cases, the court held that [s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Id. at p. ___ [165 L.Ed.2d at p. 237, fn. omitted].)

Here, defendant asserts that when Officer Prosise arrived at the scene there was no ongoing emergency. In support of his assertion, he notes that Officer Prosise asked Cantwell not what is happening but what happened, and that Officer Prosise made assurances to Cantwell that she was now safe. Accordingly, he argues Cantwells statements to Officer Prosise were testimonial, and the trial court erred in admitting them.

Even assuming the statements were testimonial and the trial court erred in admitting them, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)

Defendant claims [w]ithout Cantwells statement to Officer Prosise that her boyfriend Danny was the perpetrator[,] the evidence identifying [defendant] as Cantwells assailant is scant. We are not persuaded.

Although no one actually saw defendant assault Cantwell, the circumstantial evidence that he did so is overwhelming. Cantwell told Dr. Aiken her live-in male friend assaulted her with a wood food tray. Metz testified Cantwell and defendant were [b]oyfriend, girlfriend and had lived together. Behlen saw a man and Cantwell yelling at each other, and the man kick the door down. Cantwell was uninjured when the man arrived, but after he left, her hand was wrapped in a towel, which she clutched to her chest, and she had what appeared to be a cut on her head or ear and blood on her face and neck. The man drove away in the van.

While Behlen could not identify the man she saw, Mund testified defendant was at the residence during the time Behlen was watching from her window and ran outside as Cantwell screamed for someone to call an ambulance and said that her finger was coming off. While Mund did not see defendant driving the van, she said the van drove away a minute or so after defendant ran outside.

Given this evidence, the trial court surely would have concluded that defendant was Cantwells assailant. Accordingly, even assuming the trial court erred in admitting Cantwells statements to Officer Prosise, the error was harmless beyond a reasonable doubt.^[3]

II

Section 273.5, subdivision (a) provides in pertinent part that any person who willfully inflicts corporal injury resulting in a traumatic condition upon a cohabitant or former cohabitant is guilty of a felony. Defendant contends the evidence is insufficient to support a finding that he and Cantwell were cohabitants. We disagree.

In reviewing a challenge to sufficiency of the evidence, we examine the record in the light most favorable to the judgment to see if it contains reasonable, solid evidence (contradicted or uncontradicted) from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Castro (2006) 138 Cal.App.4th 137, 140.)

The term cohabitant requires something more than a platonic, rooming-house arrangement. (People v. Holifield (1988) 205 Cal.App.3d 993, 999.) It has been interpreted broadly to refer to those living together in a substantial relationship -- one manifested, minimally, by permanence and sexual or amorous intimacy. (People v. Moore (1996) 44 Cal.App.4th 1323, 1333, quoting People v. Holifield[, supra,] 205 Cal.App.3d [at p.] 1000.) The element of permanence in the definition refers only to the underlying substantial relationship, not to the actual living arrangement. (People v. Moore, supra, 44 Cal.App.4th at p. 1334.) Permanence does not require exclusivity in either the relationship or the living arrangement. (Id. at pp. 1334-1335.) [F]or purposes of criminal liability under section 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods. (People v. Moore, supra, at p. 1335.) (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19.)

Metz testified defendant and Cantwell had been [b]oyfriend, girlfriend for a couple years and had lived together at defendants mothers home and in a motor home. Based on this testimony, the trial court was entitled to infer that there was more to Cantwells relationship with defendant than just a casual or platonic, rooming-house arrangement. (People v. Holifield, supra, 205 Cal.App.3d at p. 999.) Substantial evidence supports defendants conviction for inflicting corporal injury upon a cohabitant. (People v. Johnson, supra, 26 Cal.3d at p. 578; People v. Castro, supra, 138 Cal.App.4th at p. 140.)^[4]

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1] Undesignated section references are to the Penal Code.

^[2] Evidence Code 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.

^[3] Because we conclude the admission of Cantwells statements to Officer Prosise was harmless beyond a reasonable doubt, we need not address the Attorney Generals contention that defendant forfeited the right to confrontation by threatening Cantwell or apparent suggestion that we remand the matter for the trial court to determine whether a claim of forfeiture is properly raised.

^[4] Because we conclude defendants conviction for inflicting corporal injury upon a cohabitant is supported by substantial evidence, we need not address his remaining contention that the great bodily injury enhancement must be stricken, since it is dependant upon the reversal of his conviction for corporal injury upon a cohabitant.