Filed 6/26/17 P. v. Harris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

LABRONE CARLOS HARRIS,

Defendant and Appellant.
D070192



(Super. Ct. No. SCD262893)

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Labrone Carlos Harris of the crimes of corporal injury to spouse, with infliction of great bodily injury, and assault by means likely to produce great bodily injury, with infliction of great bodily injury. (Penal Code, §§ 273.5, subd. (a), 245, subd.(a)(4), 12022.7, subd. (e).) Harris admitted a serious felony prior and a strike prior. (§§ 667, subds. (a)(1), (b)-(i), 668, 1192.7, subd. (c), 1170.12.) The court sentenced Harris to a total term of 13 years in prison.
Harris argues the court violated Evidence Code section 356 when it excluded a portion of a recorded jailhouse telephone call Harris made to his wife while admitting another portion of their conversation. He contends the court's evidentiary ruling resulted in prejudicial error, requiring reversal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Harris and his wife, C.R.H., lived in an apartment on Alvarado Road in San Diego (Alvarado apartments). On June 26, 2015, C.R.H. and Harris were in the parking lot of their building when Harris hit C.R.H. in the face. C.R.H. suffered fractures near the eye socket and the left wall of her maxillary sinus. She bled profusely from a cut over her left eyebrow. Her cheekbone was bruised and swollen. Harris was arrested and jailed pending trial.
On July 7, 2015, Harris telephoned C.R.H. from jail using another inmate's PIN code (July 7 conversation). They talked about various topics, including Harris' arrest for a probation violation. C.R.H. recounted a conversation she had with Harris' sister. C.R.H. said she told her sister-in-law, "These charges are BS. It's not like I'm going to go and say that again, obviously." Harris asked if C.R.H. had noticed he had used someone else's name. He asked her what she was going to do or say and told her, "You need to call, like, and change your story." Harris said they could "get this dropped." C.R.H. said she was aware of that.
The trial took place over six days in November 2015. A resident of the Alvarado apartments (resident) testified that at approximately 1:00 p.m. on June 26, 2015, he and his girlfriend (girlfriend) were in the parking lot of the complex. Just as he was getting into his car, he saw a lady (C.R.H.) and the defendant talking. When C.R.H. handed the defendant a piece of paper, he hit her. The resident said, "[I]t was like a man hitting another man. It was a little scary." The defendant got into his car and drove off.
The resident and his girlfriend went over to C.R.H., who was yelling, "Help me, help me." C.R.H. was on the ground. She was holding her head and bleeding from her eye. C.R.H. said the man who hit her was her husband. Someone telephoned 911.
The girlfriend testified she and the resident were walking to their car. She heard a sound and saw a man leave the scene. C.R.H. was on the ground, screaming, crying and bleeding. She was frantic. There was blood gushing from her face down her shirt. The girlfriend heard C.R.H. identify her husband as the assailant.
A police officer responded to the 911 call at approximately 1:20 p.m. He was directed to go to Alvarado Hospital. When he arrived, C.R.H. was fearful and crying. She said her husband hit her in the face with his right fist. C.R.H. recounted an argument she and Harris had the night before he hit her. Harris saw a text on C.R.H.'s cell phone he believed was from another man. Harris became "enraged with anger" and left the apartment. When C.R.H. picked him up the next morning, Harris was verbally abusive and slapped her in the back of her head. He threatened to "knock her the fuck out" and said he was going to "knock her out" when they got home. C.R.H. stopped at a Denny's and ran out of the car. Harris threw a water bottle at her and hit her in the leg. Harris left on foot and C.R.H. drove home. He telephoned and said he was outside the apartment and wanted his clothes. C.R.H. packed his clothes and gave them to him. Harris said he could not leave without his court documents, which were in the trunk of C.R.H.'s car. They went to her car. She retrieved the documents and handed them to him. Harris drew back his right arm and hit C.R.H. in the face.
An emergency room nurse testified C.R.H. had a large cut to her left eyebrow. C.R.H. said her husband hit her in the face and knocked her out.
C.R.H. testified that shortly after midnight on June 26, 2015, she received a text message from a girlfriend. C.R.H. made plans to hang out with her girlfriend and a male friend. Harris became upset and left the apartment at approximately 1:00 a.m. When she picked him up the next morning, Harris was intoxicated and upset. He told C.R.H. he wanted to pack his things and leave. C.R.H. said she became angry. She pulled into a parking lot at Denny's. Harris walked away while she was yelling at him.
C.R.H. testified she drove home to lock Harris out of the house. He telephoned her and said he wanted his clothes. C.R.H. packed his clothes and gave them to him. Harris said he needed another basket of clothes and his papers from her car. She met him in the parking lot and gave him a basket of clothes with his papers on top of it. C.R.H. grabbed his arm and asked him not to leave. She hit him in the face. He turned away and she hit him four to five times in the back of his head. Harris used the laundry basket to push her away and she fell to the ground. C.R.H. was crying and bleeding. C.R.H. telephoned 911 and told the dispatcher that she and her husband were fighting and he hit her.
The prosecution played the 911 recordings for the jury. C.R.H. told the dispatcher, "[M]y husband just beat the shit out of me. I'm gushing blood, please come help me. [¶] . . . [¶] He punched me, I'm bleeding everywhere." C.R.H. said her sister-in-law was driving her to the hospital.
On cross-examination, C.R.H. testified she told the dispatcher that Harris had hit her because she wanted to get him in trouble. He was driving another girl's car. Harris never punched her. The incident was her fault. C.R.H. denied that Harris ever told her what to say or asked her to change her story.
The prosecution played a portion of the July 7 conversation between C.R.H. and Harris. C.R.H. acknowledged the transcript of the conversation showed that Harris had asked her to change her story. She testified she did not change anything. C.R.H. said she had had other conversations with Harris in which she told him she was going to come to court and tell the truth, and she did tell the truth.
The jury found the defendant guilty of the crimes of corporeal injury to a spouse and assault by means likely to produce great bodily injury. The jury sustained allegations of great bodily injury on each count. At defendant's sentencing hearing, C.R.H. asked the court not to give Harris a long prison term, saying he needed help with his alcoholism. She told the court, "He really does mess up things when he's under the influence of anything." C.R.H. said the defendant's actions had traumatized her and ruined her life.
DISCUSSION
A
The Parties' Arguments
Harris argues the court erred when it refused the defense's request to admit an additional portion of the July 7 conversation to provide context to the portion of the conversation that was admitted into evidence. He contends the court misapplied Evidence Code section 356, which provides where part of conversation is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party. Harris asserts the error requires reversal because had the court properly applied Evidence Code section 356, it was reasonably probable he would have obtained a more favorable result from the jury. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The People maintain the court properly applied Evidence Code section 356 because the portion of the July 7 conversation that was excluded was not relevant to the portion of the conversation that was admitted into evidence. The People further argue that even if the court erred when it denied the defense's request to admit another portion of the conversation, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24.)
B
Standard of Review and Relevant Legal Principles
A trial court's determination of whether evidence is admissible under Evidence Code section 356 is reviewed for abuse of discretion. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
Evidence Code section 356 states: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
" 'In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. "In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . ." [Citations.]' " (People v. Zapien (1993) 4 Cal.4th 929, 959.) "Further, the jury is entitled to know the context in which the statements on direct examination were made." (People v. Harris (2005) 37 Cal.4th 310, 335.)
C
Appellant Has Not Provided an Adequate Record on Review;
Nevertheless, Error, If Any, Is Harmless

During the trial, the prosecution gave an unredacted transcript and a redacted transcript of the July 7 conversation to the defense and the court. The prosecution asked the court to allow the following portion of the July 7 conversation to be played for the jury to impeach C.R.H.'s statements denying that Harris asked her to change her story:
"DEFENDANT: Did it—when I called you right now did the name say something different?

CRH [C.R.H.]: What?

DEFENDANT: Was it a different name?

CRH: Yeah.

DEFENDANT: Yeah, that's why I called you from this one or uh just instead of mine.

CRH: Uh hmm.

DEFENDANT: And so . . . whatcha gonna do or say?

CRH: What?

DEFENDANT: So whatcha gonna do or say?

CRH: I'm not talking to her. I'm done.

DEFENDANT: I'm talking, no I'm talking about . . . as far as this.

CRH: Oh. I don't know. I'm, I'm literally, like I haven't even been at home. I haven't even slept since Sunday. I'm, like, fuckin' like my life is ruined. Like, I have nowhere to live. I have no job . . . . [¶] . . . [¶]

DEFENDANT: Somebody's gonna call you and ask you stuff.

CRH: Okay. They can ask me all that they want. Like, what, what am I going to do, like, obviously . . .

DEFENDANT: What are you going to say?

CRH: [W]hat?

DEFENDANT: You need to call, like and change your story . . . . [¶] You know that, right? Or, you, you don't want to?

CRH: Yeah, I, tryin' to like talk on this stupid phone. Just gonna make shit worse so . . .

DEFENDANT: But just keep that in mind.

CRH: Clearly.

DEFENDANT: Uh hmm. Yeah. So. Uh hmm. 'Cause if anything we can, we, we . . . we can get this dropped. Uh hmm.

CRH: Yeah. I'm aware of that.

DEFENDANT: Yeah. [¶] . . . [¶]

CRH: Okay.

DEFENDANT: Alright. I love you.

CRH: I love you, too.

DEFENDANT: Alright. Bye."

The defense asked the court to admit a different portion of the July 7 conversation into evidence. Prior to the portion of the conversation described above, C.R.H. told Harris she had told her sister-in-law, "These charges are BS. It's not like I'm going to go and say that again, obviously." The defense argued this statement was the same subject matter as the portion of the July 7 conversation the prosecution wanted to introduce, and its admission was required by Evidence Code section 356.
The court said, "I don't know what subject matter she's talking about with the sister." The defense acknowledged the conversation was "very fluid," but argued the statement was not a reflection of the subject matter of the conversation with the sister-in-law. Rather, C.R.H. stated the current charges were "BS." This showed that C.R.H. had already determined what was true before the defendant asked her whether she was going to change her story.
The court found that C.R.H.'s statement to her sister-in-law took place during a different conversation than she was having with Harris, and she was merely repeating what she had told her sister-in-law. The court denied the defense motion.
The prosecution gave an unredacted transcript of the July 7 conversation to the court, who reviewed it before denying the defense motion under Evidence Code section 356. The unredacted transcript is not in the appellate record. The appellant has the burden to produce an adequate record demonstrating trial court error. (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1226.) Without the unredacted transcript, we cannot review whether the trial court abused its discretion in denying the defendant's motion to admit a portion of the July 7 conversation. Because the record is inadequate for appellate review, we presume the court ruled correctly. (Id., at p. 1227.)
Furthermore, in view of the overwhelming evidence supporting the verdict, error, if any, is harmless. A judgment will not be reversed due to the erroneous exclusion of evidence unless it appears, upon examining the entire cause, including the evidence, a miscarriage of justice has resulted. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) A miscarriage of justice occurs only when the reviewing court is convinced it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (California Crane School, Inc. v. National Commission for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 24.)
Here, it is not reasonably probable a result more favorable to the appellant would have been reached absent the error. There is overwhelming evidence to show the appellant committed the crimes of corporal injury to spouse and assault by means likely to produce great bodily injury, and inflicted great bodily injury on the victim. A disinterested eyewitness testified he saw Harris hit C.R.H. very hard in the face. He and another witness heard C.R.H. identify the assailant as her husband after she was assaulted. When C.R.H. telephoned 911, she said, "[M]y husband just beat the shit out of me. I'm gushing blood, please come help me. [¶] . . . [¶] He punched me, I'm bleeding everywhere." "
An emergency room nurse testified C.R.H. had a large cut to her left eyebrow. C.R.H. said her husband hit her in the face and knocked her out. The record shows that C.R.H. suffered fractures near the eye socket and to her maxillary sinus. She bled profusely from a cut over her left eyebrow, and her cheekbone was bruised and swollen.
The responding police officer said C.R.H. was fearful and crying when he met with her at the hospital shortly after the incident. C.R.H. told him that Harris had become "enraged with anger" and was still verbally abusive the following morning. When C.R.H. picked him up, Harris slapped her in the back of her head while she was driving. He threatened to "knock her the fuck out" and said he was going to "knock her out" when they got home. C.R.H. said she was frightened, stopped the car, and ran away from Harris. Later, Harris refused to leave the apartment without his court documents, which were in the trunk of C.R.H.'s car. C.R.H. told the police officer when she handed the court documents to Harris, he drew back his right arm and hit her in the face.
In view of the overwhelming evidence supporting the verdict, it is not reasonably probable that the jury, upon hearing C.R.H. tell the defendant she had told his sister "these charges are BS," would have returned a result more favorable to appellant. Accordingly, we affirm the judgment. (Cal. Const., art. VI, § 13; Evid. Code, § 354.)
DISPOSITION
The judgment is affirmed.




MCCONNELL, P. J.

WE CONCUR:




O'ROURKE, J.




AARON, J.