Filed 2/22/18 P. v. Smith CA5
Opinion on rehearing





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR ALEXANDER SMITH,

Defendant and Appellant.

F072958

(Madera Super. Ct. No. MCR044412)


OPINION


APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


INTRODUCTION
Defendant was convicted of inflicting corporal injury on Shannon, a cohabitant. Shannon’s son, Anthony, told police that he had heard his mother yell, “Stop Victor, you’re going to kill me.” At trial, Shannon refused to testify, and Anthony claimed he did not remember what was said during the incident. An audio recording of Anthony’s statement to police, in which he conveyed Shannon’s utterance to defendant, was played for the jury. Defendant contends this violated his right to confrontation under the Sixth Amendment. We disagree. The confrontation clause was satisfied with respect to Anthony because he was “confronted” (i.e., available for cross-examination at trial); and the confrontation clause is inapplicable to Shannon because she was not a “witness[] against” defendant (i.e., her statement was not testimonial).
The trial court found true a special strike allegation. Defendant claims the court’s determination that his prior offense was a “strike” violated his Sixth Amendment jury trial right. We reject that contention.
We also conclude that sufficient evidence supported the trial court’s true finding on the strike enhancement.
Finally, we strike defendant’s sentence imposed on a count for which he was acquitted, and reduce related assessments. In all other respects, we affirm the judgment.
BACKGROUND
In a second amended information filed May 21, 2014, defendant Victor Alexander Smith was charged with felony corporal injury upon a cohabitant (count 1; Pen. Code, § 273.5, subd. (a)), and three counts of misdemeanor resisting a peace officer (counts 2–4; § 148, subd. (a)(1)). The information also alleged defendant had suffered a prior conviction of bank robbery (18 U.S.C. § 2113, subds. (a), (d)), which is a serious or violent felony. (§ 667, subds. (b)–(i).)
A jury convicted defendant on counts 1, 3, and 4. The jury acquitted defendant on count 2. The court found true the allegation defendant had suffered a prior serious or violent felony.
The court sentenced defendant to the middle term of three years on count 1, doubled to six years pursuant to section 667, subdivision (e)(1). The court sentenced defendant to four days with four days credit for time served for each of counts 2 and 3. Finally, the court sentenced defendant to six days with six days credit for time served on count 4.
EVIDENCE
On February 14, 2013, Anthony was in his room when he heard his mother, Shannon, and defendant arguing loudly in the living room. Anthony heard, “Stop Victor, you’re going to kill me.” He heard banging and heard Shannon scream. Anthony called 911 and said his mom’s boyfriend was beating her up.
Police officers arrived and encountered Shannon in or near the garage. She was frantic and scared, and had a “fresh” abrasion and swelling above her right eye. Shannon also had an open wound on her arm, swelling on the lower left side of her back, and redness, swelling, and scrapes on her arm.
Officers encountered defendant down the road from the house. Defendant cussed and yelled at the officers, and he smelled of alcohol.
At trial, Anthony claimed he could not remember what was said during the argument. He also claimed he did not hear anyone scream. Defense counsel declined to cross-examine Anthony.
At trial, Shannon answered a few preliminary questions before saying, “I have nothing else to say. I plead the Fifth. Nothing happened.” She refused to testify further.
DISCUSSION
I. Defendant Has Not Shown a Confrontation Clause Violation
Defendant challenges, on confrontation clause grounds, the admission of Anthony’s statement that he heard Shannon say, “Stop Victor, you’re going to kill me.”
A. Law
The confrontation clause affords criminal defendants the right “to be confronted with the witnesses against” them. (U.S. Const., 6th Amend.) The clause’s term “witnesses” means “those who ‘bear testimony.’ [Citation.]” (Crawford v. Washington (2004) 541 U.S. 36, 51 (Crawford).) Consequently, whether a person is a “witness” under the confrontation clause turns on whether they “bore testimony” – i.e., whether their statements are “testimonial.”
“[T]estimonial out-of-court statements have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th 608, 619.)
If the prosecution seeks to introduce a testimonial statement, the defendant must be given an opportunity to cross-examine the declarant. (U.S. Const., 6th Amend.)
B. Application
Defendant argues that Anthony’s statement was testimonial and Shannon was unavailable for cross-examination. While both of these premises are likely true, defendant’s claim nonetheless fails because Anthony was available for cross-examination at trial and Shannon’s statement was not testimonial. Thus, the confrontation clause was satisfied with respect to Anthony because he was “confronted” (i.e., available for cross-examination at trial); and the confrontation clause is inapplicable to Shannon because she was not a “witness[] against” defendant.
Defendant takes issue with both of our premises. First, he argues that Shannon’s statement was testimonial. Defendant cites cases holding that statements 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” but 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.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.) Defendant argues that any emergency caused by the domestic violence was over when Anthony gave his statement. But Shannon’s statement is nontestimonial for reasons completely independent of the ongoing emergency rule described in Davis v. Washington. Shannon’s statement was an exclamation during an argument with her boyfriend in a house. It was not “made with some degree of formality or solemnity” nor did “its primary purpose pertain[] in some fashion to a criminal prosecution.” (People v. Dungo, supra, 55 Cal.4th at p. 619.) As a result, the statement was nontestimonial regardless of whether it was made during an ongoing emergency. Because Shannon’s statement was not testimonial, she was not a “witness against” defendant.
Second, defendant argues that Anthony was not made available for cross-examination because he did not testify at trial that Shannon had said, “Stop Victor, you’re going to kill me.” Instead, Anthony’s statement to police that Shannon had indeed said, “Stop Victor, you’re going to kill me[]” was introduced as an audio recording into evidence after Anthony testified. As a result, defendant argues his trial counsel had no incentive to cross-examine Anthony.
The confrontation clause is completely satisfied when the declarant of a testimonial statement is made available for cross-examination at trial. “When a declarant ‘appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’ [Citation.]” (People v. Murillo (2014) 231 Cal.App.4th 448, 455–456.) The confrontation clause does not require that an in-trial opportunity for cross-examination be coupled with any particular incentive for the defense to pursue cross-examination.
Additionally, Anthony could have been recalled by the defense after his statement to police was played for the jury.
In sum, there was no “witness[] against” defendant he was unable to “confront.” (U.S. Const., 6th Amend.) We therefore reject his confrontation clause claim.

II. The Sentencing Court’s Finding on the “Strike” Allegation did not Violate Defendant’s Sixth Amendment Rights

A. Background
Defendant waived his right to a jury trial on the allegation that his prior conviction for violating 18 U.S.C. 2113, subdivision (a) was a “strike” (§ 667, subds.(b)–(i)) under California law. At the court trial, the prosecution offered the district court’s judgment on the conviction into evidence. The judgment reflected that defendant had pled guilty to “armed bank robbery” under 18 U.S.C. 2113, subdivision (a). The court concluded that defendant was the person named in the judgment and that “apparently there’s no opposition to the fact that the crimes as set forth in this amended judgment come within the meaning of … section 667 subdivisions (b) through (i).” As a result, the court found the strike allegation true.
B. Issue Presented
18 U.S.C. 2113, subdivision (a) reads:
“Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
“Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
“Shall be fined under this title or imprisoned not more than twenty years, or both.”
This subdivision describes several distinct ways the federal crime of bank robbery can be committed. The force/violence/intimidation version in the first paragraph corresponds to the serious felony of bank robbery under California law, which is defined as “to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control management, or possession of any bank, credit union, or any savings and loan association.” (§ 1192.7, subd. (d); see also People v. Miles (2008) 43 Cal.4th 1074, 1081–1082 (Miles).)
But neither the extortion version of the crime described in the first paragraph, nor the burglary-esque version of the crime described in the second paragraph of the statue correspond to any serious felony under California law. (See Miles, supra, 43 Cal.4th at pp. 1081–1082 & fn. 5.)
Consequently, “evidence that the defendant suffered a previous conviction under [18 U.S.C.] 2113(a), standing alone, cannot establish that the conviction was for a serious felony under California law.” (Miles, supra, 43 Cal.4th at p. 1082.) Additional evidence is required to determine whether the conviction was for the force/violence/intimidation version of the crime. For example, evidence from the record of conviction (e.g., the federal court’s judgment), “may be examined to resolve the issue. [Citations.]” (Ibid.)
The divisibility of 18 U.S.C. 2113, subdivision (a) raises a related Sixth Amendment issue: May a sentencing judge make the finding as to which crime described by 18 U.S.C. 2113, subdivision (a) defendant was convicted of? Or must the issue be resolved by a jury? The Supreme Court’s recent decision in Gallardo, supra, 4 Cal.5th 120 sets forth the applicable law.
C. Law
When a criminal statute (e.g., the “Three Strikes” law) “imposes added punishment based on findings about the facts underlying a defendant’s prior conviction, ‘[t]he Sixth Amendment contemplates that a jury – not a sentencing court – will find such facts ….’ ” (Gallardo, supra, 4 Cal.5th at p. 124, italics added.) However, “determinations about the nature of prior convictions are made by the court, rather than a jury, based on the record of conviction. [Citation.]” (Id. at p. 138, citing People v. McGee (2006) 38 Cal.4th 682, 695 (McGee), italics added.)
Consequently, a sentencing judge may still identify facts “established by virtue of the conviction itself ….” (Gallardo, supra, 4 Cal.5th at p. 136.) This includes facts “that the defendant admitted as the factual basis for a guilty plea.” (Ibid., fn. omitted.)
D. Application
Here, the sentencing court stayed within its limited role by making a finding supported by the record of conviction. Specifically, the district court judgment shows defendant was convicted of “armed bank robbery” which clearly supports the inference defendant pled to the force/violence/intimidation version of bank robbery described in the first paragraph of 18 U.S.C. 2113, subdivision (a); rather than the extortion or burglary-esque versions of the crime. Since “a sentencing court is permitted to identify those facts that were already necessarily … admitted by the defendant in entering a guilty plea ….” (Gallardo, supra, 4 Cal.5th at p. 124, italics added) by looking to “the record of conviction” (id. at p. 138), there was no Sixth Amendment violation here.
III. Sufficient Evidence Supported the Court’s “Strike” Finding
Defendant contends there was insufficient evidence to support the court’s true finding with respect to the strike allegation.
A. Law
“The prosecution is required to prove each element of an alleged sentence enhancement beyond a reasonable doubt. [Citations.]” (People v. Learnard (2016) 4 Cal.App.5th 1117, 1122, review granted Feb. 22, 2017, S238797.) ‘We review the record in the light most favorable to the judgment to determine whether it is supported by substantial evidence. [Citation.] “In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.’ [Citations.]” (Ibid.)
“ ‘[I]n the absence of countervailing evidence, … identity of person may be presumed, or inferred, from identity of name.’ [Citation.]” (People v. Saez (2015) 237 Cal.App.4th 1177, 1190.)
B. Background
At the court trial on the “strike” allegation, the prosecution offered an “Amended Judgment in a Criminal Case” from the United States District Court for the Eastern District of California. The judgment reflected that a defendant “Victor Alexander Smith, II” with a “Date of Birth” of “1976” was convicted of “Armed Bank Robbery” (18 U.S.C. § 2113, subd.(a) & (d)), among other crimes. Neither party disputed that “the crimes as set forth in th[e] amended judgment come within the meaning of section 667 subdivisions (b) through (i).”
During the court trial, defense counsel stipulated that defendant’s birthdate is April 28, 1976.
C. Application
Defendant argues there was insufficient evidence that defendant was the same Victor Alexander Smith convicted for the federal offense. We disagree.
Defendant’s name is Victor Alexander Smith. The federal judgment lists “Victor Alexander Smith, II” as the defendant. Defendant was born in 1976, and the Victor Alexander Smith referenced in the federal judgment was also born in 1976. Identity of first, middle, and last names, and birth year constituted substantial evidence that the Victor Smith referenced in the judgment is the defendant. (Cf. People v. Saez, supra, 237 Cal.App.4th at p. 1190.) No evidence to the contrary was introduced. We therefore reject defendant’s substantial evidence challenge.
IV. The Sentence on Count 2 Must be Stricken
The jury acquitted defendant on count 2. Nonetheless, the court sentenced defendant to four days in custody with four days credit for time served “[a]s to Count 2.” Both parties agree that this sentenced must be stricken and related assessments reduced. We accept this concession.
DISPOSITION
The sentence on count 2 is hereby stricken; the court operations assessment (§ 1465.8) shall be reduced from $160 to $120; and the criminal conviction assessment (Gov. Code, § 70373) shall be reduced from $120 to $90. The trial court is directed to prepare an amended abstract of judgment reflecting these changes, and to transmit the amended abstract to the appropriate parties and entities. In all other respects, the judgment is affirmed.


______________________
POOCHIGIAN, Acting P.J.

WE CONCUR:


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FRANSON, J.


______________________
MEEHAN, J.