APPEAL from the Superior Court of Riverside County. Rick S. Brown, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. (Super.Ct.Nos. SWF028703 & SWF028761)
The opinion of the court was delivered by: Acting P.J.
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In case No. SWF028703, a jury found defendant and appellant Richard William Kossakowski guilty of inflicting corporal injury on a spouse. (Pen. Code, § 273.5, subd. (a), count 1.) It also convicted him of misdemeanor assault (Pen. Code, § 240), a lesser included offense of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 2). Defendant admitted that he served one prior prison term. (Pen. Code, § 667.5, subd. (a).) The trial court sentenced him to five years in state prison: four years in state prison on count 1; 30 days in county jail (stayed) on count 2 (Pen. Code, § 654); and a consecutive term of one year in state prison for the prison prior.
On appeal, defendant contends that the trial court improperly admitted the preliminary hearing testimony of the victim at trial. We affirm.*fn1
The victim and defendant, who were married, lived in a mobilehome park in Lake Elsinore. On May 26, 2009, the victim drank three malt liquor drinks in the afternoon. Defendant and the victim started arguing. The victim locked herself in the bedroom. She knew defendant was at the bedroom door, so she went to open it, and defendant "opened the door in [her] face." After further arguing, the victim lay down on the bed. Defendant put his hands around her neck and started choking her until she could not breathe. She felt like she was losing consciousness. The couple struggled with each other until the victim fell off the bed. Defendant stopped choking her for a minute, but then started again. He finally stopped when the victim pretended to be dead. After defendant stopped choking her, the victim ran out of the mobilehome and down the street. Defendant ran after the victim, caught her, and spun her around.
Two witnesses, Devin Fowler and Kevin Noonan, were talking outside with some other friends when they heard someone yelling and screaming for help. The witnesses walked toward the mobilehome park, where the noise was coming from. At trial, Fowler testified as to what he saw: "A guy had his hands around a girl's neck." The victim was gasping for air, and "was just trying to get away from him." Noonan testified that the victim was yelling, "'Let go of me'" and "'stop.'" Noonan yelled at the man, "'Stop, let go of her.'" Defendant did not let go of the victim until both witnesses came within a few feet of them. Defendant backed off and said, "'Oh there's nothing going on.'" The victim was crying.
Deputy Ibarra was dispatched to the scene just before midnight. The witnesses pointed the deputy in the direction of the couple. When the deputy approached the couple, they were walking back toward their mobilehome, and the victim was still crying. Deputy Ibarra placed defendant in the back of the patrol car and spoke to the victim. The victim showed "signs of fear," and she would only speak with the deputy if they were "completely out of sight of [defendant]." The victim told Deputy Ibarra that she had been "assaulted by her husband." Deputy Ibarra observed large blotches of red marks around her entire neck. There was no bruising, so the deputy estimated that the marks were "fairly recent." He took photographs of the marks on her neck, and they were admitted into evidence at trial.
On June 6, 2009, defendant, who was then an inmate in county jail, placed a telephone call to the victim, which was recorded and transcribed. A recording of the call was played for the jury at trial. During the call, the victim was talking about the incident and said that defendant "flipped out." Defendant recalled that the victim was upset and ran out the door, and that he "came out chasing [her]." The victim replied, "Oh, my God, what is wrong with you? Yeah, that's why I have a string of bruises around my neck . . . 'cuz you don't remember . . . going in that bedroom . . . choking me?" Defendant said, "Why . . . would you rat me off and put me in here for shit like that anyway?" The victim replied, "Why . . . would you ever put your hands on me again?" She reminded defendant that he promised he would never hurt her again. Defendant asked, "Why were we drinking to begin with?" She responded, "What does that have to do with you laying your hands on me?" Defendant said, "I don't think any of this would have happened if we weren't drinking." He then apologized to her.
I. The Trial Court Properly Admitted the Victim's Preliminary ...