The opinion of the court was delivered by: Cantil-sakauye ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert James Menefee was convicted by a jury of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),*fn1 making a criminal threat (§ 422), violating a protective order (§ 273.6), and attempting to prevent and dissuade a victim/witness from making a report. (§ 136.1, subd. (b)(1).) In a bifurcated court trial, defendant was found to have a prior serious felony conviction for first degree burglary subjecting him to the provisions of section 667, subdivisions (a), (b)-(i), and section 1170.12. The trial court sentenced defendant to state prison for the upper term of four years on his corporal injury on a spouse conviction, doubled to eight years based on his prior strike; a consecutive one-third of the middle term (eight months) for his criminal threat conviction, doubled for the strike to 16 months; and a consecutive term of five years for the section 667, subdivision (a) enhancement, for a total prison term of 14 years four months. The trial court imposed 146 days of concurrent jail time for defendant's two misdemeanor convictions.
On appeal, defendant makes multiple assertions of error: (1) the trial court's admission of two 911 calls; (2) the trial court's denial of his motion for new trial, including the denial of his request for a trial transcript to assist substitute defense counsel in bringing the new trial motion; (3) ineffective assistance of counsel involving numerous claims; (4) insufficiency of the evidence to support his felony corporal injury on a spouse and criminal threat convictions or, in the alternative, that the trial court abused its discretion in refusing to reduce them to misdemeanors; and (5) abuse of discretion by the trial court in imposing the upper term sentence. We shall affirm the judgment.
Defendant and Okimma Menefee*fn2 were married in September 2004. They separated in May 2006 after Okimma discovered that defendant was cheating on her. For two weeks they argued about Okimma's wanting, and defendant's refusing, a divorce until one morning Okimma woke up to an angry defendant, who started to hit her repeatedly with his belt. When defendant left the room, Okimma thought he was going to get a gun. She ran to another room in their house and went out a window onto the garage roof. She fell to the ground, hurting her arm and ankle. She was taken to the hospital. She had welts on her body from being hit with the belt. Okimma went to live with her mother.
In November 2006, defendant was present in court when a three-year protective order was issued. Among other things, the order stated defendant "must not annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal property of, or otherwise disturb the peace of . . . Okimma Menefee."
Defendant continued to contact Okimma several times a day and to drop by Okimma's mother's house to see her. The week before September 10, 2007, Okimma stopped answering defendant's calls and refused to see him.
Normally after Okimma finished work at her job as a medical assistant for Sutter Memorial, her co-worker Leisa Diciolla would walk Okimma to her car. On September 10, 2007, Diciolla left early. Another co-worker, Latoya Coleman, walked with Okimma to the parking lot. Coleman was good friends with Okimma and was also a friend of defendant.
As Okimma and Coleman approached Okimma's car, they noticed defendant was in a gray Mustang parked next to Okimma's car. When defendant saw Okimma, he got out of the car and yelled at her, "Is this how it's gonna be? . . . [Y]ou can't return my phone calls or my texts?" Okimma told him she was busy and that the relationship was over. Defendant kept coming towards her. Okimma told defendant he was not supposed to be there. Defendant told her she was going to get in the car and go with him. Okimma told defendant she had to take Coleman home, although this was just a ruse to get away from defendant. Defendant told her she was either coming with him or he was going with her. Okimma told defendant he would have to come with them, but as defendant turned back to the Mustang to get something, Okimma tried to get in her car and close the door.
Defendant opened Okimma's door and reached across her body to snatch her car keys from the ignition. Okimma and Coleman testified to slightly different versions of what happened next.
According to Coleman, Okimma instructed Coleman to call the police. Coleman tried, but defendant reached over Okimma and tried to grab Coleman's cell phone. Defendant moved around to the passenger side of Okimma's car and Coleman got out of the car. Defendant took her place in the passenger seat. He told Coleman that if she called the police he would hit Okimma. After a pause, defendant started to hit Okimma. Coleman was shocked. Although she had heard defendant threaten Okimma in the past, this was the first time she saw him hit her. Coleman tried to grab him and pull him away. Defendant got out of the car and said to Coleman and Okimma: "If you call the police I know where you live." Coleman took his threat seriously. She knew he had been on her street one time and that several times he showed up uninvited when she was with Okimma. She was afraid he would hurt her. Defendant left.
In Okimma's version, Coleman was outside the car, yelling for defendant to give back the car keys. Defendant went back to his car and replied that Okimma could get home the best way she could and proceeded to move the Mustang behind Okimma's car. Okimma told Coleman to get in the car and said they could call 911. Defendant got out of the Mustang and walked up to Coleman. He asked if she was calling the police on him. Coleman yelled out the license plate number of the Mustang. Defendant touched Coleman on the arm and her shirt. He told her if she called the police on him, he would hit Okimma. Coleman picked up her cell phone, which she had dropped, and started to call. Defendant then started hitting Okimma. Defendant hit her in the face one or two times before she was able to get her arms over head to block his blows. Defendant hit her on the back of her head and on her arms. He hit her about 15 times as hard as he could. Okimma screamed for help. When defendant stopped, he threw her keys down, and said: "If I go to jail, I know where you live." He pointed at Okimma and Coleman and said, "I know where your mom live[s] and I know where you live, too." Then defendant got in the Mustang and left. Okimma was afraid for her life.
Alice Pedersen happened to be at Sutter Memorial Hospital for her annual doctor's visit on September 10, 2007. As she was getting ready to get into her car in the parking lot, she heard voices screaming. She heard a woman saying, "help, help." She walked towards the voices to see what was going on. She saw a male inside the driver's side door of a car. His full body was lunged inside the window of the car. Pedersen tried to call 911, but got a busy signal.
At that point, the man walked back to his car, a silver Mustang. The man backed the Mustang up and stopped behind the first car. Pedersen walked closer and saw the man now lunging inside the passenger side of the car. The woman that had been the passenger was yelling, "Leave her alone." She yelled his name and said, "What has happened to you?" or "What is wrong with you?" "I don't recognize you anymore." Pedersen heard the woman inside screaming. She sounded scared. As people started coming out of the medical building, the man got in his car and drove away. Pedersen positioned herself to see the car and noted its license plate number. She went upstairs to the doctor's office and reported it.
Defendant fit the description of the man Pedersen saw and she felt his eyes looked the same. She was not, however, able to identify defendant at trial as the man she saw. She testified there was nothing about defendant that precluded him from being the same man.
After defendant left, Coleman and Okimma returned to their work office. Coleman called the police and, with the permission of her supervisor Debbie Young, used Young's name on the 911 call in order to protect herself. She was afraid defendant would harm her.
Coleman, Young, and the Sutter Memorial Foundation regional manager, Jennifer Kubasek, all noticed Okimma was hurt. Okimma's eye was red and a bruise was forming under the eye. She had blood on her shirt and a busted lip. She was complaining of an injury to her arm, which was swollen and numb. Coleman, Young, Kubasek, and another co-worker helped Okimma to the emergency room of the hospital. A radiologist described the injury to the forearm as mild soft tissue swelling in one spot. Medical records regarding her hospital treatment were admitted. The police officer who saw Okimma at the emergency room also noted Okimma had a small cut on the inside of her mouth, bruising around her eye, and some swelling on her left forearm. She had a small amount of blood on her shirt.
A couple of hours later, as Coleman left the emergency room, she saw defendant outside. He was in the passenger seat of a different car, which was being driven by a female. He was ducking down. Coleman called 911 again because she was afraid defendant would hurt her or Okimma. Officers responded and followed Coleman and Okimma to the freeway to make sure they were okay.
About this same time, defendant called Okimma's mother, Rose Woodward. Defendant told Woodward that he jumped on her daughter and that he felt good about it. He said he had to put hands on her daughter, but now he felt okay and could leave her alone. Woodward had talked to defendant in the past about his hitting her daughter because she had seen bruises on Okimma and her grandchildren had told her what had been happening. Woodward was afraid of defendant and did not trust him.
About half an hour after Coleman saw defendant in the emergency room parking lot, defendant called Coleman and asked about Okimma's condition. He asked if they had called the police. Coleman did not tell him they had. She was afraid.
Okimma testified to incidents of prior abuse by defendant, claiming that he had assaulted her more times than she could remember. She estimated there were 15 incidents of assault, but prior to the May 2006 incident, it was always with just his hands. She claimed defendant had choked her about five times and one time he threw hot water on her when she was dressing to go out with a co-worker. She had tried to leave defendant, but he would not let her.
Coleman testified Okimma was aware defendant was seeing other women after they separated. She did not seem upset or jealous.
On October 4, 2007, a Sacramento police officer stopped a Chevy Capri for having a loud stereo. Defendant was driving the Capri with Ashley Rosales as a passenger. Defendant ran and was discovered an hour later in a house, hiding under a bed with the police canine on him. Defendant had changed his clothes and taken a shower in the belief it would make it harder for the police canine to find him.
The essence of defendant's defense was that Okimma was jealous and made something up to get defendant in trouble. The defense called Ashley Rosales and her mother to testify that Okimma came to Rosales's house demanding to confront Rosales about her relationship with defendant and Okimma appeared at Rosales's workplace wanting to engage Ashley in a fight. Although Rosales never mentioned it to police at the time, Rosales also claimed she was attacked by Simona Archie, a prostitute, Okimma, and another woman shortly after defendant was arrested in October 2007. (The prosecution introduced time cards showing Okimma was at work during the time of the attack.) Rosales started dating defendant in early 2006, discovered she was pregnant in August 2007, and testified she loved defendant with all her heart.
Rosales admitted she had been convicted of a misdemeanor crime of moral turpitude. During cross-examination, Rosales admitted to engaging in acts of prostitution. A portion of a taped jail call from defendant to Rosales was played in which defendant berated Rosales about being arrested for prostitution in his truck. Comments made during the conversation suggested Rosales was engaging in prostitution on defendant's instructions.
The Trial Court did not Abuse its Discretion in Admitting the 911 Calls Made by Coleman On September 10, 2007, Coleman made two telephone calls to emergency 911. The trial court ruled the calls were admissible over the defense objection that they did not qualify as spontaneous declarations. (Evid. Code, § 1240.) Defendant claims on appeal the trial court abused its discretion in so ruling. Defendant also complains "[t]he calls contained information about prior acts and threats that were not relevant to the purpose of the introduction of the 911 calls." We find no abuse of discretion in the admission of the complete calls.
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."
"'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.'" (People v. Poggi (1988) 45 Cal.3d 306, 318, quoting Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468.)
Whether Coleman's statement met the requirements of a spontaneous declaration presents a question of fact over which the trial court exercises its reasonable discretion. (People v. Smith (2007) 40 Cal.4th 483, 519.) We review the factual determinations for substantial evidence and the ultimate decision of whether to admit the evidence for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
The key factor that makes a statement spontaneous is "the mental state of the speaker." (People v. Farmer (1989) 47 Cal.3d 888, 903, disapproved on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The intent of the exception is to allow out-of-court statements that are "undertaken without deliberation or reflection." (Farmer, supra, at p. 903.) The passage of time does not deprive the statement of the required spontaneity if it was made under the stress of excitement while the reflective powers were in abeyance. (People v. Brown (2003) 31 Cal.4th 518, 541.) "'The nature of the utterance--how long it was made after the startling incident and whether the speaker blurted it out, for example--may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.' [Citation.]" (Ibid.)
Coleman's first 911 call was made approximately 15 minutes after defendant's assault on Okimma. In it Coleman tells the 911 operator that she is at her job, that her "friend just got attacked by her--her husband up here really bad in the parking lot. And he tried to attack me. And she's inside the, um--at Sutter--by Sutter Memorial Hospital. . . . She's inside one of the offices but he's threatened to come to her mom's house and--and kill her and threaten me and I'm scared to leave and we . . . ." Then answering the operators questions, Coleman goes on to name and describe defendant and the Mustang he was driving. Coleman does not want her name used and asks the operator to put down Young's name as the person who called. Coleman notifies the operator that Okimma is injured and that there is a restraining order in effect.
Coleman's second 911 call was made several hours later, just after 8:00 p.m. In it Coleman references the prior altercation and tells the California Highway Patrol (CHP) 911 operator that "her friend is being discharged but her husband is roaming outside the parking lot." Coleman states she is scared and gives her name as "Debbie Young." She says she does not want to be identified because of defendant's threats. The CHP operator transfers the call to the Sacramento Police emergency call center. Coleman then briefly describes the earlier incident with defendant in the parking lot to this operator and reports that she has just seen defendant in a different vehicle "roaming the emergency parking lot." She is worried that defendant is still in the area. Coleman says she is about to pick Okimma up from the emergency room to take her home and is afraid something will happen.
Although the prosecution and the defense disagreed over whether Coleman sounded excited during these calls, the trial court issued a written ruling regarding the prosecution's motion in limine to admit the 911 calls in which it stated it had listened to the calls and expressly considered "the tenor, context, and scope" of each call. Relying on the "emergent nature" of each call, the court granted the prosecution's motion over defendant's objection.
We find no error. Our review of the record shows the calls were made either shortly after or during the events being reported. Coleman was upset and scared by the events that she was relaying to the authorities. She was frightened enough that she did not even want to be identified on the calls. As our record does not include the 911 tapes, we are not able to separately assess Coleman's tone of voice or demeanor, but the record reflects the trial court did listen to the tapes and did consider such matters. We presume the tapes support the trial court's ruling. Thus, substantial evidence supports a conclusion that the calls were "undertaken without deliberation or reflection." (People v. Farmer, supra, 47 Cal.3d at p. 903.) The trial court did not abuse its discretion in admitting the calls.
Nor was defendant prejudiced by the admission of the complete calls because they contained information about "prior acts and threats," as defendant now claims. The only prior acts and threats by defendant described by Coleman in the calls were those that occurred during the assault of Okimma in the parking lot. Such acts and threats were the subject of the first call and were referenced as context for Coleman's fear of defendant in the second call.
The Record Does not Establish any Ineffective Assistance of Defense Counsel
After the jury returned the verdicts against defendant, defendant substituted counsel. Substituted counsel, who is the same attorney representing defendant on appeal, subsequently brought a motion for new trial based in part on claims of ineffective assistance of defendant's trial counsel. The trial court denied substituted counsel's request for a full or partial transcript of the trial to assist counsel in bringing the new trial ...