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The People v. Daniel John Nagy


July 19, 2011


(Super. Ct. No. SF108452A)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Nagy



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is a spousal abuse case in which defendant Daniel John Nagy was convicted by a jury of (count one) spousal abuse, a felony (Pen. Code, § 273.5, subd. (a)), (count two) making a criminal threat, a felony (Pen. Code, § 422), (count three) dissuading a witness by force, a felony (Pen. Code, § 136.1, subd. (c)(1)), (count four) false imprisonment by violence, a felony (Pen. Code, § 236), and (count five) false imprisonment, a misdemeanor (Pen. Code, § 236).*fn1

The jury found true enhancement allegations to counts one and two alleging that defendant inflicted great bodily injury in the commission of the offenses (§ 12022.7, subd. (e)). The trial court found true an enhancement allegation that defendant had suffered four prior prison terms. (§ 667.5, subd. (b).)

Defendant was sentenced to the upper term of four years for spousal abuse, a consecutive eight month term for making a criminal threat, a consecutive eight month term for false imprisonment by violence, a consecutive three year term for dissuading a witness by force, plus an additional five years for the infliction of great bodily injury enhancement and an additional four years for the prior prison term enhancements. Defendant was sentenced to a total term of 17 years and four months in state prison.

Defendant claims there was insufficient evidence his victim sustained great bodily injury. He claims his sentences on counts two and three should have been stayed pursuant to section 654. He challenges the admission of evidence of his prior acts of domestic violence against the victim, and argues the admission of hearsay evidence was prejudicial. He claims that the victim's outbursts against him denied him the right to a fair trial. Finally, he claims the trial court erred in failing to appoint him new counsel.

We shall conclude there was no reversible error, and shall affirm the judgment and sentence.


In May 2008, Kimberly Dunn and defendant had a one month-old son. Defendant, Dunn and their son resided in a house with Sherry Cobarrubias and another man. Cobarrubias was defendant's ex-girlfriend, and Dunn's friend. Cobarrubias was the son's primary caregiver.

Defendant was released from jail on May 29, 2008. He arrived at his and Dunn's house around 5:00 p.m. Dunn was drunk, and was afraid of defendant, knowing he would be angry. The two argued because Dunn had spent defendant's bail money on narcotics and because defendant did not like the people living in their house.

Defendant stayed at the house two or three hours before going to Amy Taylor's house to get some drugs. Dunn waited 20 minutes to one-half hour before following defendant to Taylor's house. Taylor was also defendant's girlfriend. Dunn was jealous and thought Taylor was a back-stabber.

When Dunn arrived at Taylor's house she was belligerent and angry. She cursed and spat at defendant. Dunn eventually passed out. She woke up a couple of hours later, and Taylor's next door neighbor walked her home around 1:00 or 2:00 a.m. Defendant stayed with Taylor. When Dunn got home she went to her bedroom and went to sleep.

When Dunn woke up, she found out from Cobarrubias that defendant had never returned from Taylor's house. Dunn called a cab to take her to Taylor's house. She banged on Taylor's door. It took a long time for defendant to answer. When he did, he was angry and told Dunn she had no business there. Dunn went to the bedroom where Taylor was sleeping and tried to wake her up. As she did this, defendant grabbed Dunn by the arm and told her she needed to get home and take care of his son.

Defendant and Dunn started cursing at each other. Defendant pulled her out onto the front porch and pushed her down the steps. He pushed her down on the ground and kicked her. He told her to get home and take care of his son. Then he rode off on his bicycle. Dunn picked herself up off the ground and walked home.

When she got home she asked Cobarrubias, who was in the downstairs family room, if she could use Cobarrubias's phone to call another cab. She then went upstairs to the bedroom and lay down. The next thing she heard was banging on the door and defendant yelling, "Where is that bitch?" Dunn got up and went downstairs. As she got to the bottom of the stairs, Cobarrubias was opening the front door to defendant. He came in and told Dunn to "get upstairs, bitch." He kicked her and told her to get in her room because she was "on restriction" meaning she could not come out. When they were at the top of the stairs, defendant took Cobarrubias's phone away from Dunn and threw it down the stairs, breaking it.

When Cobarrubias complained that he had broken her phone, he asked her why she needed a phone, and asked her if she were a rat. Cobarrubias tried to calm down defendant, but eventually he pushed her hard on her chest and told her to get in her bedroom and that she was on restriction until her husband got out of jail and could deal with her. Cobarrubias went into her room with the baby and shut the door. She heard defendant go back upstairs.

The beatings started when defendant and Dunn were upstairs. Defendant punched her in the face, choked her, and pulled her hair. She could not breathe. She thought he was going to kill her. Dunn was screaming for Cobarrubias to help her when defendant put a screwdriver to her neck and told her that if she made one more sound he did not like he would take out her windpipe so she could never scream again.

Cobarrubias heard Dunn asking her for help. She climbed out a window with the baby, ran to the Hazelton Clinic, and asked them to call the police. Defendant eventually left the house.

Police officer Patrick High arrived on the scene at 8:26 a.m. He testified that one of Dunn's eyes was black and swollen shut, and that there were black and blue marks underneath the other eye. She had blood in her eye, dried blood around her mouth, and blood coming from her ears. One of her fingers was swollen, and she complained of pain in her hand. She said her jaw was broken, and she had other bruises on her legs. She identified defendant as her attacker.

Dunn was transported by ambulance to St. Joseph's Medical Center. Officer High took a statement from her at the hospital. She told High there had been some domestic violence incidents when she had been seven months pregnant, that she had called the police, and that defendant had been arrested and his parole violated. He had been sent back to prison for two months for the parole violation.

Dr. Ellison Cordray examined Dunn in the emergency room, but Dunn left to get her methadone before he could perform a full body examination. Dr. Cordray observed that Dunn's face was swollen, both eyes were bruised and swollen, there was a small laceration in her right ear, and abrasions on her forehead and upper part of her face. He found the injury to the ear concerning because if left untreated it could cause irreversible damage to the cartilage.

Dr. Cordray examined Dunn again the next day. That time, he noticed bruising and swelling on the fourth finger of her right hand. An X-ray revealed that the finger was fractured. It was a spiral fracture caused by the finger being twisted. Dunn once again left before the exam could be completed.



Evidence of Great Bodily Injury

In counts one and two (infliction of corporal injury to a spouse or cohabitant and making criminal threats, respectively), the jury found as an enhancement that defendant personally inflicted great bodily injury in the commission of the offense. Defendant argues there was insufficient evidence of great bodily injury to support the enhancements. We disagree.

Section 12022.7, subdivision (e) provides that a person who inflicts great bodily injury under circumstances involving domestic violence shall be punished an additional consecutive term of three, four, or five years. The trial court imposed an additional five year sentence for count one, and stayed the five year sentence for the enhancement to count two.

"Great bodily injury" is defined by statute as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) "Proof that a victim's bodily injury is 'great' -- that is, significant or substantial within the meaning of section 12022.7 -- is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (People v. Cross (2008) 45 Cal.4th 58, 66; examples of qualifying injuries omitted.) The injury must be "a substantial injury beyond that inherent in the offense itself . . . ." (People v. Escobar (1992) 3 Cal.4th 740, 746-747; People v. Cross, supra, at p. 64.)

In Escobar the Supreme Court held that section 12022.7 does not require that the victim suffer permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function. The test is more general. It requires that the victim suffer significant or substantial physical injury beyond that inherent in the offense itself. (3 Cal.4th at pp. 746-747, 750.)

In making these determinations the jury is granted considerable discretion. The terms "significant or substantial" are not self defining. Their meaning appears when the terms are applied. To the extent that the application is left to the trier of fact, discretion is granted to define the terms. "'A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly, it is the trier of fact that must in most situations make the determination.'" (Escobar, supra, 3 Cal.4th at p. 752; citation omitted.)

The substantial evidence rule governs the appellate determination whether the facts support a lawful application of the terms "significant or substantial" in the circumstances of the case. We are directed to affirm the jury's finding of great bodily injury if there is substantial evidence to sustain it, even though the evidence could also support a contrary finding. (People v. Escobar, supra, 3 Cal.4th at p. 750.)

As noted, Dunn suffered a spiral fracture to one finger, bruising and swelling around the eyes, abrasions to the face, bruising on the legs, and a laceration in the ear that, if left untreated, could cause permanent damage. These injuries were not insignificant and are sufficient to support the jury's finding of great bodily injury.

Defendant's reliance on People v. Nava (1989) 207 Cal.App.3d 1490 for the proposition that a broken bone does not per se constitute great bodily injury is misplaced. People v. Nava, supra, held that it was error to instruct the jury that a bone fracture constitutes a significant and substantial physical injury within the meaning of the statute. (Id. at p. 1494.) The court concluded that a broken bone may constitute great bodily injury, but that every bone fracture does not constitute great bodily injury as a matter of law. (Id. at p. 1498.) The instruction in People v. Nava, supra, was error because it usurped the fact-finding role of the jury. (Id. at pp. 1497-1498.) There was no similar instruction in this case.


Custody Credits

Section 2933.1 provides that a person convicted of an offense listed in section 667.5, subdivision (c) shall accrue no more than 15 percent worktime credit. Section 667.5, subdivision (c)(8) includes any felony in which the defendant inflicts great bodily injury. Defendant argues that since there was insufficient evidence he inflicted great bodily injury, the case should be remanded for resentencing and recalculation of worktime credits. As we have determined in section I, ante, that substantial evidence supports the finding of great bodily injury, the credit calculation is correct.


Penal Code section 654; Count Three, Dissuading a Witness

The jury found the defendant guilty of count three, that the defendant unlawfully prevented and dissuaded Dunn and Cobarrubias from reporting a crime by force and threats of injury. (§ 136.1, subd. (c)(1).)

The elements of a violation of section 136.1, subdivision (c) are: (1) the person dissuaded was a witness or victim; (2) the defendant, with the specific intent to do so, attempted to prevent or dissuade the person from making a report of the victimization to any peace officer; (3) the defendant acted knowingly and maliciously; and (4) the dissuasion involved force or the threat of force. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320; People v. Ortiz (2002) 101 Cal.App.4th 410, 416.) A violation of section 136.1, subdivision (c) occurs when the defendant knowingly and maliciously attempts to prevent or dissuade a victim or witness to a crime from making a report of the victimization to any peace officer. (§ 136.1, subd. (b)(1) & (c).)*fn2

Defendant argues the evidence was insufficient to sustain the verdict as to Cobarrubias. He argues that as a result, there was sufficient evidence to sustain the verdict as to Dunn, only. Furthermore, since the prosecution relied on the same acts to convict him of corporal injury to Dunn and dissuading Dunn, the sentence for count three must be stayed pursuant to section 654.

Defendant claims the evidence was insufficient to sustain count three as to Cobarrubias because, according to Cobarrubias's testimony, defendant's acts of breaking her phone and pushing her into her bedroom occurred before defendant made any criminal threat to Dunn. He argues that the acts of breaking Cobarrubias's phone and throwing her into her bedroom did not establish the element of dissuading her by force because neither act was accompanied by any threat.

Dunn and Cobarrubias gave conflicting accounts at trial of the chronology of events. Dunn testified that defendant beat her and threatened her with a screwdriver before he went downstairs and she heard Cobarrubias's phone being smashed. Cobarrubias testified that she heard defendant and Dunn arguing upstairs when defendant took her phone away from Dunn and threw it downstairs. When Cobarrubias told him he had broken her phone, he asked why she needed a phone. He asked if she were a "rat," which she knew meant he was asking if she would call the police. After that, defendant pushed her into her bedroom and told her she was "on restriction." While she was in her bedroom, she heard defendant hitting Dunn, and heard Dunn screaming for help.

In the version of events Cobarrubias relayed to Officer High, defendant started beating Dunn before he broke Cobarrubias's phone and before he pushed her into her bedroom. Cobarrubias told Officer High that defendant broke her phone after Dunn told her to call the police and get help. This occurred after defendant began punching Dunn. She said she heard fighting and Dunn yelling upstairs. Defendant came downstairs, locked the front door, and "threw" Cobarrubias into her bedroom telling her "Don't leave" and "Your job is to watch the baby." Cobarrubias stated she did not think she could leave at that point.

As is relevant here, subdivision (c)(1) of section 136.1 provides that the crime is a felony if the act of dissuading a witness or victim is knowing and malicious and is accompanied by force upon the witness or the property of the witness or by an express or implied threat of force or violence upon the witness or the property of the witness. Defendant threw Cobarrubias's phone to the ground and broke it after Dunn asked Cobarrubias to phone for help. After breaking the phone he indicated to Cobarrubias that he thought she wanted to use it so she could "rat" on him. His words and actions constituted an attempt to prevent Cobarrubias from reporting his crime against Dunn, thus constituted an act of dissuading a witness. The dissuasion was accompanied by force against the property of the witness--hurling her phone to the ground and breaking it. This satisfied the force element of the crime. These words and acts were followed by defendant pushing Cobarrubias and making her go to her room, further satisfying the element of force accompanying the dissuasion. No separate threat was necessary to commit a violation of section 136.1, subdivision (c)(1).

Defendant also argues that the jury's verdict convicting defendant of the lesser included offense of misdemeanor false imprisonment represents a rejection of the prosecution's theory that defendant used force or fear to confine Cobarrubias, and therefore a rejection of the theory that defendant dissuaded Cobarrubias by force or fear when he threw her into her bedroom and told her to stay there.

The verdict convicting defendant of felony dissuading a witness was not inconsistent with the verdict convicting him of only misdemeanor false imprisonment. Felony false imprisonment requires that the confinement be "accomplished" by violence or menace, and the jury was so instructed. Felony dissuading a witness requires the act of dissuasion be "accompanied by force or by an express or implied threat of force or violence[.]" There was evidence in the record that defendant's use of force, i.e., pushing her on the chest, accompanied the dissuasion of Cobarrubias, but did not accomplish her confinement.

According to Cobarrubias's testimony at trial, the events unfolded as follows. Cobarrubias unlocked the door and let defendant in. Defendant went upstairs and Cobarrubias heard him arguing with Dunn. Dunn was at the top of the stairs trying to leave when defendant threw Cobarrubias's phone downstairs. Cobarrubias heard yelling and scuffling from the upstairs hallway. Defendant told Dunn to go into her room, and that she was on restriction. Cobarrubias yelled at defendant that he had broken her phone. He impliedly asked her if she was being a rat. As he said this he started downstairs. Defendant went through Dunn's purse, throwing things out of it in a rage. Cobarrubias watched defendant do this from her bedroom door. Cobarrubias went out into the hallway, trying to calm down defendant. While they were talking, Dunn came downstairs. Defendant went to force her back upstairs and they scuffled. As they went back up the stairs they started yelling and Cobarrubias took the baby back in her bedroom and shut the door. She heard Dunn yell at defendant to stop hitting her. Cobarrubias came out of her room and yelled up at defendant. She could still hear scuffling in the upstairs hallway, but could not see them. As Cobarrubias went back toward her bedroom, defendant came back downstairs. Cobarrubias was trying to calm down defendant, but Dunn kept yelling at him. Cobarrubias started to leave the living room to go to the kitchen and make a bottle for the baby. Defendant told her he was glad she was there to take care of the baby, then he pushed her hard on her chest and told her to go back to the bedroom. He told her she was on restriction until her husband got out of jail. She would not go into the bedroom, so he pushed her again, but not as hard the second time. She started walking toward the bedroom and he told her to shut the door. After that, she heard defendant threaten Dunn with the screwdriver.

These events were sufficiently close in time that the jury could have found that the defendant's inquiry implying Cobarrubias was a rat was accompanied by his use of force pushing her back to her room. The use of force certainly accompanied his direction to Cobarrubias to go to her room and lock the door. His use of the term "on restriction" implied that she was not to come out. However, the jury could have reasonably inferred from Cobarrubias's testimony that she walked into her room on her own, and was not forcibly carried there by defendant. Thus, the jury could have found that her confinement was not accomplished by force.

Defendant argues his sentence for dissuading the victim from reporting the crime must be stayed pursuant to section 654 because it was based on the same act upon which the spousal abuse charge (§ 273.5, subd. (a)) was based. As we have determined that there was sufficient evidence to convict defendant of violating section 136.1 against Cobarrubias, defendant is subject to a consecutive sentence for this violation.*fn3


Penal Code Section 654--Count Two, Criminal Threats

Defendant argues that the sentence for count two, making a criminal threat (§ 422) must also be stayed pursuant to section 654. He argues that since the only victim of count three was Dunn (an argument we rejected in part III), the facts supporting count two, making a criminal threat, and count three, dissuading a witness, were the same, i.e., threatening to rip out Dunn's windpipe with a screwdriver. Defendant concedes that "[i]f there were multiple victims in count three, then the trial court would have been authorized to punish [defendant] for making a criminal threat against Dunn in violation of section 422 in count two, and for dissuading Cobarrubias in violation of section 136.1, subdivision (c)(1), in count three."

We determined in part III that there were two victims of count three, dissuading a witness or victim, thus the trial court properly imposed a separate, consecutive sentence for count two.


Evidence of Prior Domestic Violence

Defendant argues that the admission of evidence of his prior acts of domestic violence pursuant to Evidence Code sections 1101, subdivision (b) and 1109 violated his federal constitutional rights to due process and equal protection, and that the evidence should have been excluded pursuant to Evidence Code section 352. We reject both claims.

Evidence Code section 1109, subdivision (a)(1) provides in relevant part: "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 1101 provides in relevant part that evidence of prior criminal acts of a defendant are admissible when they are relevant to prove some fact other than the defendant's disposition to commit such acts.

The prosecution sought the admission of the following evidence of four prior incidents of domestic violence.

First, on January 30, 2008, police responded to a 911 call by Dunn. Dunn reported defendant grabbed her by the hair and threw her on the ground, then hit her in the head with a clog. She had a two-inch swollen area and a small laceration on the side of her head. Dunn was six months pregnant. No charges were filed.

Second, on February 1, 2008, police officers were dispatched to Dunn's home after she reported that defendant grabbed her hair, pulled her to the ground, and began hitting her with his fist in the chest and face. Dunn suffered a small laceration on her upper lip that was not bleeding. No charges were filed.

Third, on February 19, 2008, Dunn was seen for a pregnancy exam. The nurse examiner noticed Dunn's right eye was bright red, and that she had a one-to-two week old bruise on her upper arm. Dunn told the nurse that the injuries were inflicted when defendant bit her and hit her. When the nurse told Dunn she was required to report the abuse, Dunn became uncooperative and left.

Fourth, on June 11, 2008, an investigator with the district attorney's office interviewed Dunn's 13 year-old son. The son stated that he had witnessed defendant put a knife to Dunn's throat. No charges were filed.

The trial court admitted the first three incidents, and found they were probative and not highly prejudicial. The trial court excluded the incident involving Dunn's 13 year-old son, finding the information vague and cumulative.

A. Defendant's Constitutional Claims

Defendant argues Evidence Code section 1109 violates due process and equal protection. He claims this argument was not forfeited by failure to raise the objection at trial because any objection would have been futile in light of People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), which upheld the constitutionality of a parallel statute (Evid. Code, § 1108), and in light of the rejection of similar due process challenges to Evidence Code section 1109 by the appellate courts.

Whether or not the argument was forfeited, it is meritless. This court held in People v. Johnson (2000) 77 Cal.App.4th 410, 412, that Evidence Code section 1109 does not violate a defendant's right to due process. We stated that the California Supreme Court issued an opinion in Falsetta holding that Evidence Code section 1108, which allows admission of prior sex offenses, does not violate due process. (Id. at p. 417.) We concluded that "by parity of reasoning [with Falsetta], the same applies to Evidence Code section 1109, since the two statutes are virtually identical, except that one addresses prior sexual offenses while the other addresses prior domestic violence." (Ibid.) We agree with People v. Johnson, supra, and adopt its analysis.

Defendant's equal protection argument--that Evidence Code section 1109 treats criminal defendants accused of domestic violence differently from all other criminal defendants except sex offenders--is also meritless. A similar contention was rejected in People v. Jennings (2000) 81 Cal.App.4th 1301. Jennings, supra, reasoned that even if domestic violence defendants were "similarly situated" with respect to all other criminal defendants, a fact that Jennings had failed to demonstrate, the appropriate standard of review is not strict scrutiny. (Id. at pp. 1311-1312.) Instead, the statute satisfies equal protection requirements if it bears a rational relationship to a legitimate state purpose. (Id. at p. 1312.) "Absolute equality is not required; the Constitution permits lines to be drawn. [Citation.] The distinction drawn by section 1109 between domestic violence offenses and all other offenses is clearly relevant to the evidentiary purposes for which this distinction is made." (Id. at p. 1311.) The statute thus satisfies equal protection.

Defendant claims the proper standard of review is strict scrutiny because his fundamental right of freedom is affected by the classification. Jennings, supra, addressed this claim and dismissed it. So do we. Jennings held that while statutes allowing certain evidence against particular kinds of criminal defendants may make prosecution easier, this does not render such statutes direct restraints on the defendant's personal liberty. (81 Cal.App.4th at p. 1312.) "To require strict scrutiny analysis in this case would as a practical matter deny the Legislature the power to admit propensity evidence in any case unless it was admissible in all cases. Equal protection does not require the state to choose between attacking every aspect of a problem or not attacking the problem at all, and does not prohibit the Legislature from regulating certain classes of cases in which the need is deemed most evident. [Citation.]." (Jennings, supra, 81 Cal.App.4th at pp. 1312-1313.)

B. Defendant's Evidence Code Section 352 Claim

Defendant also claims the trial court abused its discretion when it failed to exclude the evidence pursuant to Evidence Code section 352. Defendant has waived this argument.

The prosecution filed a written in limine motion to admit evidence of prior instances of domestic violence, to which no written opposition appears in the record. At the hearing on the motion, defense counsel conceded the admissibility of the prior acts when he stated: "I believe that in addition to the [section] 1109 issue that there [are] other issues which would support an admission of the incidents . . . ." Defense counsel then noted that the incidents all involved Dunn and all occurred in a "very short period" of time.

Unless defendant objected to the admissibility of the evidence on this ground at trial, the issue is not preserved for appellate review. (Evid. Code, § 353, subd. (a); People v. Kipp (2001) 26 Cal.4th 1100, 1124.) Defendant makes no argument that an objection pursuant to Evidence Code section 352 would have been futile. The argument is waived.

C. Defendant's Prosecutorial Misconduct Claim

In addition to the prior instances of domestic violence that the trial court allowed pursuant to the prosecution's motion in limine, Dunn testified to an incident that occurred on February 8, 2008. She testified that defendant came home in the early morning hours, they fought, and he stripped her, beat her black and blue, pulled out her hair, bit her, and choked her. These were the injuries noticed by the nurse at Dunn's pregnancy exam on February 19. The prosecutor's in limine motion did not include any incident on February 8, 2008. However, except for a hearsay objection and an objection that no question was pending defendant's trial counsel raised no objection to Dunn's testimony regarding the February 8, 2008 incident.

Later, however, defense counsel filed a motion for new trial, in which he argued that the prosecutor's questions invited a violation of the court's limitation on the use of prior domestic violence evidence. The trial court made the following findings in ruling on the motion:

"First point the defense raises, which is the prejudice on this February 8 incident that that information did result in lack of a fair trial to Mr. Nagy here, you have to look at the context of the whole case. This is a relationship that had gone on for some time between Mr. Nagy and his wife Ms. Dunn. They had a young boy, four weeks old. A volatile relationship with a lot of difficult issues between the two of them. Ms. Dunn did testify about a number of incidents. We did use 1109 evidence. We did instruct them under CALCRIM 852. We talked about other incidents, I believe on January 30th, on February 1, February 19, and somehow traipsed into February 8. I don't find any misconduct by the People or the defense with regard to her testimony on that.

I do believe, a big issue here, was Ms. Dunn, the February 8 incident was one piece of a puzzle, but I don't think a significant piece given the range of the relationship and the testimony about the troubled relationship they had.

What I will find, even if there is some prejudice from the February 8 incident, it's of a minor manner and an insufficient basis for a new trial when you look at all the evidence in the case and the issues between the parties, basically the credibility of Ms. Dunn and other witnesses for that example, but primarily Ms. Dunn because she's the main victim."

To the extent defendant's argument is that the prosecutor committed misconduct, the claim is not reviewable because there was no timely objection at trial and request for an admonition. (People v. Price (1991) 1 Cal.4th 324, 447.) In any event, we agree with the trial court that any error was harmless under any standard of review.

There was other evidence of defendant's abuse against Dunn, and defendant conceded to the introduction of evidence regarding the injuries Dunn sustained on the challenged occasion. Evidence that defendant perpetrated the injuries on Dunn in this case were overwhelming. Both Dunn and the eyewitness Cobarrubias named defendant as the culprit. Several other instances of defendant's prior violence against Dunn were properly admitted. Evidence of one more instance of defendant's prior violence toward Dunn was therefore harmless.



Defendant objects, as he did at trial, to the admission of certain hearsay evidence. The claimed hearsay involved statements of Dunn to four separate individuals. Defendant argues he was prejudiced because the repetition of Dunn's account of the attack through the testimony of other witnesses, three of whom were law enforcement representatives, lent a false aura of credibility to her testimony. We shall examine each witness separately.

A. Dunn's Statement to Officer High

High arrived at Dunn's residence at 8:26 a.m., within minutes of the attack. He testified he made contact with Dunn and observed her injuries. Over a hearsay objection, High testified that Dunn stated defendant caused her injuries and that defendant had been arrested for domestic violence a few months earlier. He recounted in detail Dunn's statement to him regarding the circumstances of the crime.

The trial court allowed the testimony over the hearsay objection on the grounds it was a spontaneous statement, it was a fresh complaint, and because it corroborated Dunn's testimony. We conclude the statement was properly admitted as a spontaneous statement and for corroboration of Dunn's testimony.

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." The crucial factor in determining whether a statement falls within this exception is the mental state of the speaker. (People v. Farmer (1989) 47 Cal.3d 888, 903, disapproved on other grounds by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The nature of the statement and how long it was made after the incident are important solely as indicators of the mental state of the declarant. (Id. at pp. 903-904.)

In this case, High arrived on the scene within minutes of the attack. Dunn was badly injured, and High testified that she was "very upset" initially and had been crying. Only after he spoke with her did she calm down enough for him to find out what had happened. Despite her injuries, she had no trouble recalling events, and identified defendant as the person who had caused them. Dunn's identification of defendant at the scene as the perpetrator of the beating undoubtedly qualifies as a spontaneous statement.

Dunn requested an ambulance when the police arrived. After the ambulance took Dunn to the hospital, High spoke with her at the hospital, where he took a full statement. Although it is unclear whether that statement was made in response to questioning, that fact would not necessarily deprive the statement of spontaneity. (People v. Farmer, supra, 47 Cal.3d at p. 904.) Detailed questioning may deprive the response of the requisite spontaneity, but each fact pattern must be considered on its own merits. (Ibid.) Again, it is not clear from the record to what extent Dunn's statement was made in response to questioning.

The trial court is vested with reasonable discretion in determining whether a particular statement is a spontaneous declaration. (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588-1589.) Under the circumstances here, where the victim was in pain from her injuries, where she had very recently been the victim of a severe beating, and where there is no evidence in the record that the statement was made as a result of extensive questioning, the trial court did not abuse its discretion in admitting the statement as a spontaneous declaration.

The statement was also admissible under Evidence Code section 791, which provides that evidence of a witness's prior consistent statement is admissible to support credibility if: "An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Id. at subd. (b).)

Dunn testified on cross examination that after she left the hospital after the incident, the police brought her son to the hospital. Because she was not there, her son was taken by Child Protective Services (CPS), in whose custody he remained at the time of trial. Defense counsel proceeded to imply through his questions that Dunn's testimony was fabricated in order to get her son back. The statement to High, made before her son was taken away, was thus admissible to rebut the implication that her trial testimony was fabricated in order to get her son back.*fn4

The court did not abuse its discretion in admitting hearsay evidence through the testimony of Officer High. B. Dunn's Statement to Dr. Cordray

Defendant objects to testimony by Dr. Cordray relating what Dunn said to him when she was being seen in the emergency room after the attack. When asked how Dunn stated her injuries had occurred, Cordray responded, "She told me her husband had just gotten out of prison and came home and assaulted her. . . . She said with fists."

The trial court admitted the testimony under the spontaneous statement exception to the hearsay rule. We conclude the trial court did not abuse its discretion in admitting the testimony. The statement was made shortly after the attack, at approximately 9:00 a.m. The doctor described significant trauma, from which the trial court could have inferred Dunn was experiencing enough pain to make it unlikely that she would fabricate a story for the doctor treating her. The trial court did not abuse its discretion in admitting the testimony under the spontaneous statement exception to the hearsay rule.

Like the testimony of Officer High, the doctor's testimony was also admissible as a prior consistent statement, since Dunn's son had not been taken away from her at the time she made the statement. The court did not abuse its discretion in admitting the testimony under the prior consistent statement exception to the hearsay rule.

C. Testimony of Parole Agent Wiggins

Dexter Wiggins was defendant's parole agent. Dunn went to his office around 1:30 in the afternoon after the attack. Wiggins testified that Dunn was crying, and appeared "upset," "scared," and "broken down." Wiggins testified over objection that Dunn told him defendant had beat her for about an hour and said he was going to kill her. She told him all her injuries came from defendant beating her, and that she had a broken hand from trying to shield her face.

The trial court admitted agent Wiggins's testimony under the same three exceptions to the hearsay rule. Wiggins's testimony was admissible under Evidence Code section 791, as a prior consistent statement. Dunn's report to Wiggins occurred before she found out her son had been taken by CPS. She thus made the statement prior to having that motive to lie. "A prior consistent statement logically bolsters a witness's credibility whenever it predates any motive to lie, not just when it predates all possible motives. Accordingly, under Evidence Code section 791, 'a prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness's testimony.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 492.) The statement was properly admitted.

D. Testimony of Investigator Mitchell

Peggy Mitchell, an investigator for the district attorney, testified that she interviewed Dunn on June 11, 2008. Dunn would not talk to her at first because she was afraid of making defendant angry. Eventually, she told Mitchell that defendant had her throat in one hand and a screwdriver in the other hand while he threatened to rip out her throat. He told her he would kill her if she did not stop screaming for Cobarrubias to help her. Dunn stated defendant was angry with her for not bailing him out when he was in jail. Mitchell testified to these statements without objection by defense counsel.*fn5 A timely objection is required to preserve a claim of error in the admission of evidence. (People v. Pollock (2004) 32 Cal.4th 1153, 1181; Evid. Code, § 353.) Defendant's claim of error with respect to the admission of Dunn's statement through the testimony of Mitchell is forfeited.


Fair Trial

Dunn was a difficult, obstreperous witness. She repeatedly editorialized and, as defendant's trial counsel noted, made "a speech after every question." As defense counsel also noted, the trial court "admonished her repeatedly[.]" For example, defense counsel was cross-examining Dunn regarding her preliminary hearing testimony, at which time she had been questioned about hitting defendant. She interjected: "So are you trying to say I deserve being beat up the next morning? Is that what we are getting at?" The trial court admonished: "You and I talked about that. Let's not make a beef. Answer the question. They'll pose a question, you answer it. We have two advocates, I don't need a third."

Later, Dunn said to defense counsel: "You guys are trying to trick me into saying something that didn't happen." The court told her to "[j]ust . . . focus on the question." Dunn then said, "That is your job, I guess." Defense counsel objected and the trial court admonished: "Ms. Dunn, I don't want to get difficult. Keep your opinions to yourself."

Still later defense counsel asked Dunn, "So the cab driver left without ever asking you for the money that you owed him?" Dunn responded, "That's correct. What kind of story is he telling you?" The court said, "Ma'am, again, you're not the one asking questions." Dunn replied, "I want to know." The court told her, "Let's stay away from that. I need you to rely on your memory . . . ."

During his cross-examination of Dunn, defense counsel asked that the trial court admonish her outside the presence of the jury. The trial court responded that it had done so every time Dunn had testified, but that it would do so again. The trial court then spoke to Dunn outside the presence of the jury, at which time the following conversation took place.

"[THE COURT:] Ms. Dunn, I keep reminding you, I will reiterate it, it will go a lot better, meaning they'll get their question, you'll get your answer if you focus on the question and don't argue. Don't argue.

THE WITNESS: I'm sorry. I have a touch of Turret's.

THE COURT: Keep it under control. I need you to focus on the question, the same as you did with [the prosecutor]. I have to keep an even keel to each side. I can't let the witness take the stand, give a personal speech how they don't like or hate someone. I can't do that. Can't allow it. They will ask you the questions. When they are done, they'll have follow-up. [¶] Focus on the question, answer to the best of your ability. [¶] Nobody is saying this is easy. We need your best memory."

After his conviction, defendant made a motion for a new trial on the ground, inter alia, that Dunn's outbursts denied him his right to a fair trial. In denying the motion, the trial court found:

"Defense argues she was an inflammatory witness, she was prone to outbursts. We saw her. Okay. I did admonish her a number of times. She was a volatile, emotional witness. Again, those things happen more often than not in domestic violence cases because we have issues of relationships that we don't have in the average burglary, robbery, or petty theft case. There is a lot of emotion here, goes back over time. Kids are often involved.

In a case like this everybody can expect there will be a high level of emotions. Hers was unusually high.

Defense had the argument that Ms. Dunn was in fact not a candid person, lying is a fair term or neutral term, that she was being less than candid with her comments here. I believe given the examination by the People and by the defense all of her issues of credibility were fairly put in front of the jury and that did include her emotionality. I thought it favored the defense in this case, but personal opinion is not what we are here for.

Given a review of her testimony and remembering her testimony, I'm going to find it is not a sufficient basis for a new trial. It put her accurately in setting, a person recovering, did have significant drug, alcohol, and personal behavior problems. That is the witness. That is how she testified. And the jury made a decision with a full view of this lady's past and present."

Defendant now argues that the trial court erred in failing to adequately control Dunn's outbursts, and the prosecutor committed misconduct by failing to control its witness. He also argues the trial court abused its discretion by denying his motion for a new trial. He has forfeited any claim of prosecutorial misconduct by failing to raise a timely objection on this ground. (People v. Foster (2010) 50 Cal.4th 1301, 1350.)

We find no error in the trial court's handling of Dunn as a witness. The trial court has the duty to control the proceedings during trial "with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (§ 1044.) The trial court's conduct of the trial is a matter within its discretion, and its determinations in the conduct of the trial must be upheld on appeal absent patent abuse. (People v. Schwartzman (1968) 266 Cal.App.2d 870, 890.)

The People, as well as the defendant, have the right to receive a fair trial. (People v. Williams (2009) 170 Cal.App.4th 587, 615.) In this case the victim's testimony was essential to the People's case. The trial court repeatedly admonished Dunn, both outside and within the jury's presence. It is unclear that the trial court could have done more than it did and still allowed the People to present the testimony of the victim.

Defendant does not explain in what way Dunn's outbursts prejudiced him, other than to say she created a "toxic atmosphere." Having reviewed the transcript, we agree with the trial court that Dunn's outbursts undoubtedly harmed her credibility more than they placed defendant in a bad light. Dunn's credibility was central to the case. Her emotional outbursts did not result in the admission of inadmissible evidence, but they did serve to put Dunn's own credibility and objectivity in doubt. Under the circumstances, any error in failing to control Dunn was harmless beyond a reasonable doubt.


Marsden Motions

Defendant argues he was denied the effective assistance of counsel by the denial of his three Marsden motions.*fn6

A. April 9, 2009 Motion

At the first motion, defendant complained that his attorney had been to see him only once, and that on that occasion, the conversation primarily had been about whether he should accept a plea offer. He expressed that there were a number of witnesses he wanted interviewed, and that his attorney had not interviewed anyone, even the victim.

Defendant's attorney explained that he had seen defendant only once because defendant was not transported for the three court dates that had been set, and when the attorney went to Duel Vocational Institute (DVI) to see defendant, he discovered defendant was not there. For a period of time, the attorney was not sure where defendant was being housed. Defendant waived time, and the trial date was continued. The attorney planned to wait until defendant was returned to DVI to visit him. However, defendant was not returned to DVI for some time. He was not returned to San Joaquin County until March, 2009, at which point the attorney went to visit him.

During the visit they went over the crime reports and the preliminary hearing. Defendant spent an hour telling his attorney exactly what had happened during the incident with Dunn. When his attorney indicated there would be some problems with that account, defendant said, "Okay, fine, then I wasn't there at all. And you can contact these witnesses and they will tell you that I wasn't there at all." Defendant's attorney told him that in light of defendant's desire to change his defense strategy, they would need more time to prepare the defense.

The trial court denied the Marsden motion, finding the delay and the attorney's actions reasonable since there was a change in the defendant's approach to the case.

A criminal defendant is entitled to substitution of counsel "'"if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations].'" (People v. Hart (1999) 20 Cal.4th 546, 603.) Substitution is a matter for the trial court's discretion, which discretion is not abused unless the defendant shows that failure to replace counsel would substantially impair the defendant's right to assistance of counsel. (Ibid.)

No abuse of discretion appears from the denial of defendant's first Marsden motion. Defendant made no claim in that motion that he had become embroiled in an irreconcilable conflict with his attorney. Defendant's concern was that his attorney had not visited him enough, had not interviewed witnesses, and only wanted to impress upon defendant how much prison time he was facing from the charges.

Defendant's attorney explained his inability or failure to see defendant more often, as well as his failure to interview witnesses. He assured defendant and the court that he was able to represent defendant, but thought it was part of his job to advise defendant if a proposed defense strategy did not have a reasonable likelihood of succeeding with a jury.

As to counsel's failure to visit defendant more often and his insistence on reminding defendant of the penalty for the charges he was facing, "the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence." (People v. Silva (1988) 45 Cal.3d 604, 622.) The trial court found defendant's failure to interview witnesses reasonable in light of defendant's change in strategy. This was not an abuse of discretion because there was no showing the failure to replace counsel "'would "substantially impair" the defendant's right to assistance of counsel.' [Citations.]" (People v. Hart, supra, 20 Cal.4th at p. 603.)

B. June 2, 2009 Motion

Defendant claimed in his second Marsden motion that he and his attorney were not getting along, and had a conflict of interest. When the trial court pressed for specifics, defendant said his attorney was not interested in his belief that CPS was forcing Dunn to testify against him in order to get her son back.

He also claimed he was ready for trial, but his attorney was not. When the trial court questioned defendant's attorney about this, the attorney explained that Amy Taylor was supposed to be a favorable and cooperative witness, but that he had been unable to locate her. The attorney gave defendant the choice of proceeding to trial without the witness, or agreeing to waive time and try to locate the witness. The attorney also offered his opinion that Taylor's value as an alibi witness would be diminished given statements she made at the time of the incident.

Regarding defendant's belief that CPS was forcing Dunn to testify against him, the attorney pointed out that Dunn's prior reporting of the incident was inconsistent with her having made up the accusation in order to get back her son.

The trial court found defendant's attorney was competent and thorough, and denied the motion.

Defendant was also upset because his attorney had not prepared a report after interviewing Dunn and because all his attorney talked about with him was the "down side."

The attorney explained, and the court agreed, that if a witness made statements that were unhelpful, as Dunn's were, he would not make a report. Finally, the attorney agreed that he was "pessimistic" about defendant's chances and that "the exposure is potentially very high." He said that because of the risk and the exposure, he thought it would be reasonable to seek a negotiated disposition.

The trial court agreed that it was the attorney's obligation to explain the down side. The trial court denied the motion, finding the attorney "prepared" and "highly competent," and that there was enough communication and respect between defendant and counsel.

On these facts it appears that defendant was receiving adequate representation. The trial court was also justified in finding that there was no irreconcilable conflict likely to result in ineffective representation. Defendant's problems with which witnesses to call and whether to seek a continuance of trial were tactical matters. Tactical disagreements do not by themselves constitute an irreconcilable conflict, nor do heated words alone require substitution. (People v. Jackson (2009) 45 Cal.4th 662, 688; People v. Taylor (2010) 48 Cal.4th 574, 600.) Also, "[t]he mere '"lack of trust in or inability to get along with,"' counsel is not sufficient grounds for substitution." (People v. Taylor, supra, at p. 600.) Defendant's problems appear to be merely an inability to get along with his counsel because counsel was honest about his assessment of defendant's case. This does not constitute an irreconcilable conflict.

C. June 8, 2009 Motion

Defendant brought his third Marsden motion a week later. He told the court there was an incurable conflict. His complaint was that his attorney kept telling him how much time he was looking at. He again complained that his attorney had not contacted either of his two witnesses. He also complained that he wanted a different district attorney on the case. He complained that his attorney told him the charges against him would result in prison time, but "[e]verybody else gets domestic classes." He also complained that his attorney had not been able to obtain the tapes from his parole board hearing.

The attorney answered that he told defendant that the blood in the victim's ears would likely convince the jury there had been great bodily injury. This was why defendant was looking at prison time. The attorney stated he had been informed that the tapes of the parole board hearing no longer existed. He also explained that his investigator contacted Amy Taylor and set up a meeting with her, but she failed to keep the appointment. The investigator was continuing to try to contact her. The investigator had also taken all of defendant's information on the other witness and was still searching for her.

The trial court denied the motion. It found that nothing had changed, and that defendant's trial attorney was more than adequately prepared. The court then ordered the trial be put over from Monday to Friday, with the jury coming in the following Monday to give defendant time to locate his witnesses.

Aside from the issue of the parole board hearing tapes, which defendant's attorney adequately explained, the third Marsden hearing raised no new issues. The trial court did not abuse its discretion in denying the motion.


The judgment is affirmed.

We concur: NICHOLSON , J. MAURO , J.

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