P. v. Wurth

Filed 1/3/08 P. v. Wurth CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Michael Earl Wurth appeals his conviction by jury of corporal injury to a cohabitant (Pen. Code,  273.5, subd. (a)),^[1]first degree robbery ( 211), felony dissuading a witness ( 136.1, subd. (c)(1)), and misdemeanor obstructing a telephone ( 591). The jury found true an allegation that appellant used force or a threat of force or violence to dissuade his victim from reporting his abuse. ( 136.1, subd. (c)(1).) The trial court suspended pronouncement of judgment, and granted appellant five years of probation on terms and conditions that required him to serve 120 days in jail, perform 20 hours of public service, pay fines and restitution, attend and complete one year of a batterer's intervention program, and to stay away from his victim, Mary Rohus.

Appellant contends that there was insufficient evidence of force or threat to sustain his conviction for felony dissuading, that statements to a 911 dispatcher were inadmissible hearsay and that their admission violated his constitutional right to confront witnesses (Crawford v. Washington (2004) 541 U.S. 36), that the court abused its discretion when it admitted evidence of a prior act of domestic violence, and that the prosecutor engaged in misconduct by arguing that victims of domestic violence typically recant. We affirm.

FACTS

Appellant lived with his girlfriend, Mary Rohus. On the afternoon of January 1, 2005, they argued about visits from the father of Rohus' son. Appellant left the apartment, but came back and the argument continued. Appellant found Rohus lying on the bed and demanded money from her. He took $42 from her wallet, tossed the wallet on the bed and searched for more money. Finding none, he straddled Rohus, spat on her and took the wallet again.

This time he found $440 in the wallet, hidden behind a photograph. He took $100 and threw the wallet and remaining cash on the floor. When Rohus crawled after it, he kicked her in the stomach with his work boot, leaving a visible bruise. Appellant removed a battery from the cordless phone, and said, "How are you going to call the fucking police now, Bitch?" Rohus crawled into a corner. Appellant left, taking Rohus' house key. Rohus located the cordless phone in pieces outside, reassembled it and called 911.

Rohus recanted at the preliminary hearing. She testified that she bruised herself by falling on her son's toy, that the money appellant took really belonged to him, and that the battery fell from her phone because she threw it. She testified that she had lied to police in order to make appellant suffer.

At trial, Rohus invoked her Fifth Amendment privilege against self-incrimination and did not testify. The jury heard the 911 tape, over appellant's objection, and heard the testimony of investigating Officer Velasquez that Rohus had reported the above described facts when he responded to her 911 call for help.

The jury also heard testimony from appellant's former girlfriend, Susan Mohler, and an investigating officer, regarding appellant's 1999 misdemeanor conviction for domestic violence. The court excluded evidence of a 1995 conviction for abuse of another former girlfriend.

DISCUSSION

Sufficiency of Evidence of Force or Threat Used to Dissuade Witness

Appellant contends that there was insufficient evidence to support the jury's finding that he used force or the threat of force or violence to dissuade Rohus from reporting abuse to police. The finding rendered his violation of section 136.1 a felony. He argues that he used no force or threat to dissuade Rohus because he left immediately after he disabled the phone. We disagree.

"We review the entire record in the light most favorable to the judgment, and affirm the conviction[] as long as a rational trier of fact could have found guilt based on the evidence and inferences drawn therefrom." (People v. Lewis (2006) 39 Cal.4th 970, 1044.) An attempt to dissuade a witness is a felony if it is "accompanied by force or by an express or implied threat of force or violence, upon a witness or victim . . . or the property of any victim, witness, or any third person." ( 136.1, subd. (c)(1)) It is immaterial whether anyone is actually injured or intimidated. (Id., subd. (d).)

Appellant's use of force upon Rohus' property was evidenced by his removal of the battery from her telephone. Section 136.1, subdivision (c)(1) plainly applies to use of force upon "the property of any victim." A rational trier of fact could also have drawn the inference that appellant conveyed an implied threat of violence against Rohus with his parting remark, "How are you going to call the fucking police now, Bitch?" The statement was made in the context of his preceding violence. He had her house key and he had already returned once that day to resume battle. Reviewing the record in the light most favorable to judgment, there is sufficient evidence to sustain the conviction.

Admission of 911 Tape

Appellant contends that Rohus' statements to the 911 dispatcher were not admissible under the spontaneous statement exception to the hearsay rule (Evid. Code,  1240), and that their admission violated his right to confront witnesses against him. (U.S. Const. 6th & 14th Amends.; Crawfordv. Washington, supra, 541 U.S. 36.) We reject both contentions.

We uphold the trial court's factual determinations if they are supported by substantial evidence, and we review for abuse of discretion the ultimate decision whether to admit the evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236.) Rohus' statements to the 911 dispatcher were hearsay. (Evid. Code,  1200.) They were offered to prove the truth of the matter asserted, that her "boyfriend just kicked [her] in the gut," "spit on [her]," "took [her] phone so [she] couldn't call 911," "took all [her] rent money," and "took the key to [her] house."

A hearsay statement is admissible if made under the stress of excitement caused by events just perceived. (Evid. Code,  1240.) When Rohus called 911, she had been kicked in the stomach "[j]ust five minutes ago." She had spent five minutes searching for an operable telephone. Appellant had just left her home, with her house key, and could have returned at any moment. The dispatcher told her, "Okay hun, hold on okay, keep breathing for me, just relax." Substantial evidence supports the trial court's implied determination that Rohus' statements were made without opportunity to reflect or fabricate. The court acted within its discretion when it admitted the statements.

Admission of the statements did not violate appellant's constitutional rights.

A testimonial statement of a witness that is absent from trial is constitutionally admissible only if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. (Crawford v. Washington, supra, 541 U.S. 36) Substantial evidence supports the trial court's determination that Ruhus' statement to the 911 operator was not testimonial because her statements were given and taken for the primary purpose of rendering aid during an ongoing emergency, not to investigate and prosecute a crime.

Testimonial hearsay has not been comprehensively defined, but it includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial and police interrogations. (Crawford v. Washington, supra, 541 U.S. at p. 68.) To be testimonial, "the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984.) A victim's report of a crime in a 911 call is not testimonial if the call is made during an assault and the statement is obtained to respond to an emergency, rather than to investigate and prosecute a crime. (Davis v. Washington (2006) 547 U.S. __ [126 S.Ct. 2266, 2276-2277].) On the other hand, the statement is testimonial if the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Id. at pp. 2273-2274 .) In the course of Rohus' call to 911, she did provide facts relevant to prosecution. She identified appellant by name and provided his date of birth, the make of his truck and the direction he was heading. However, substantial evidence supports the trial court's determination that the primary purpose of taking this information was to assess an ongoing emergency and to render aid.

Prior Act

Appellant contends that the court abused its discretion when it admitted evidence of his prior act of cohabitant abuse upon his previous girlfriend, Susan Mohler. We disagree.

Propensity evidence is generally inadmissible (Evid. Code,  1101, subd. (a)), but when a defendant is accused of domestic violence, evidence of the defendant's commission of other domestic violence is admissible to prove his propensity to commit the present offense. (Evid. Code,  1109.) Admissibility is subject to the court's discretion to exclude evidence that is more prejudicial than probative. (Evid. Code,  352.) In determining whether to admit evidence of a prior instance of abuse, trial courts should weigh factors including "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917.) "We will not overturn or disturb a trial court's exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings(2000) 81 Cal.App.4th 1301, 1314.)

The prosecution offered evidence of two prior instances of domestic violence. After weighing the factors, the court admitted the 1999 incident involving Susan Mohler, and excluded a 1995 incident involving another girlfriend. The nature of the 1999 incident was similar. Appellant was living with Ms. Mohler. He straddled her, slapped her face, took money from her, and took her telephone from her. The incident occurred about five years before the present offense. The certainty of its commission was established by appellant's conviction, based upon his no contest plea and by his admission to the investigating officer. The evidence presented to prove this prior offense consisted of court records and testimony of two witnesses. The record demonstrates that the court fulfilled its responsibilities under Evidence Code section 352 when it determined that the risk of undue prejudice, confusion or consumption of time did not outweigh the probative value of the evidence.

Prosecutorial Misconduct

Appellant contends that the prosecutor committed misconduct when he argued, "[d]omestic violence victims recant; this case is far from unusual. Domestic violence victims resist prosecution." The court overruled appellant's objection to the argument. The prosecutor continued, arguing that victims of domestic violence resist prosecution either by saying that the police got it wrong or by saying that they lied to the police. He stated, "Victims recant. Love is complex; we know that firsthand in this case." We conclude there was no misconduct.

A prosecutor may vigorously argue his or her case (People v. Fosselman (1983) 33 Cal.3d 572, 580), but must base that argument on the evidence. (People v. Bolton (1979) 23 Cal.3d 208, 213.) The prosecutor has broad discretion to state his views as to what the evidence shows and the inferences that may be drawn. (People v. Sims (1993) 5 Cal.4th 405, 463.) In the absence of prejudice to the fairness of a trial, prosecutorial misconduct will not trigger reversal. (Bolton, at p. 213.)

Appellant contends that the prosecutor's argument had no basis in the evidence, because there was no expert testimony about typical victim behavior. We disagree. The jury heard evidence of Rohus' statements to the 911 dispatcher and to Officer Velasquez that appellant kicked her, stole from her and took her phone so she could not call police. They heard evidence that she then resisted prosecution. They received her preliminary hearing testimony that she hurt her own stomach, that the money belonged to appellant and that she broke her own phone. She did not testify at trial. The jury also heard evidence that in 1999, Mohler told an investigating officer that appellant had slapped her face, taken her phone, and dragged her into the garage, but at trial Mohler denied this occurred. The investigating officer was called to impeach Mohler. This evidence, combined with the jurors' common experience, allowed them to draw reasonable inferences about the behavior of victims of domestic violence. The jurors were instructed that "Nothing that the attorneys say is evidence. In their . . . closing arguments, the attorneys discuss the case, but their remarks are not evidence . . . .  Only the witnesses' answers are evidence." We presume that the jury understood and followed the instruction. (People v. Fauber (1992) 2 Cal.4th 792, 823.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Timothy J. Staffel, Judge

Superior Court County of Santa Barbara

______________________________

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee, Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code unless otherwise stated.