IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TED KING, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 09F08381, 09M10257, 09M10298, 09M11031)
The opinion of the court was delivered by: Mauro ,j.
P. v. King
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Ted King was convicted of intimidating a witness with force or threat, battery, and violating a protective order. He was sentenced to four years in prison, plus consecutive and concurrent jail terms.
Defendant contends on appeal that the trial court erred in admitting the prior protective order into evidence because (1) the order was hearsay and the official records exception (Evid. Code, § 1280) does not apply; (2) the protective order does not have res judicata effect; and (3) the protective order was unlawful.
We conclude (1) the trial court properly took judicial notice of the existence of the protective order, including the dates of the order, but it did not take judicial notice of inadmissible hearsay, and it did not admit any facts under the official records exception to the hearsay rule; (2) although the protective order did not have res judicata effect, it was nonetheless an appropriate item for judicial notice; and (3) defendant's challenge to the underlying protective order is forfeited because he did not offer any evidence to challenge the prior order in the trial court.
We will affirm the judgment.
Defendant was separated from his wife, Laurie Cloninger. One evening Laurie walked to the Curtis Park Market with a friend named Chester. Defendant went to the front door of the store and began yelling at Laurie. Defendant yelled, "Don't ever look at me. You think I'm playin'. I'm serious. Don't look at me. Don't look at me." Defendant left and Laurie called 911.
The next month, Chester went inside the same store while Laurie waited for him in her parked car. Defendant approached the driver's side door, but Laurie locked the doors and drove away. She drove around the block, picked up defendant's sister and then went to find Chester. When they saw defendant, Laurie stopped her car. Defendant asked Laurie what they were going to do about their marriage. Defendant's sister called 911 and flagged down a passing patrol car.
More than a week later, defendant grabbed his sister by her collar, pressed her throat and yelled, "Why did you call the police on me? Don't you ever call the police on me. Are you crazy, bitch? Don't ever call the police on me." Defendant threw his sister down on the grass and her glasses flew off her face. She suffered a bruise on her arm and a scratch on her ankle.
Defendant was charged and the matter proceeded to trial. Before jury selection commenced, the prosecutor asked the trial court to take judicial notice of a prior protective order issued in a 2008 misdemeanor case. The protective order was on a Judicial Council form entitled "Protective Order in Criminal Proceeding." A box was checked for "Order Post-Trial Probation Condition." The order had issued in case No. 08M11498 on February 19, 2009, and it expires on February 19, 2012. The order prohibited defendant from having personal, telephonic, or written contact with Laurie; prevented him from having contact with Laurie through a third party, except an attorney of record; prohibited him from coming within 100 yards of Laurie; and ordered him to stay away from her home, work and school. Defense counsel stated he had no objection to judicial notice of the prior order.
In commenting on the prosecutor's request for judicial notice, the trial court stated that "a cleaner way to do it is if the two of you can stipulate to the foundation of the document . . . ." The prosecutor said he would work on a stipulation or possibly call a witness. The trial court stated, "My feeling is that taking judicial notice probably would be somewhat deficient in terms of what you're going to need."
During trial, the prosecutor again requested that the trial court take judicial notice of the protective order. Defense counsel objected, said he never agreed to judicial notice of the order, and submitted on the issue. The trial court asked whether there was anything that defense counsel would factually contest or require more time to contest. Defense counsel answered in the negative. The trial court took judicial notice "of those facts set forth [which] appear to be undisputed facts that pertain to" People's exhibit No. 1.
The trial court subsequently instructed the jury as follows: "[T]he Court at this time is taking judicial notice that People's Exhibit 1 is a protective order. That orde[r] is a document contained within Sacramento Superior Court case number 08M11498 filed on February 19th of 2009. The order was issued by Sacramento Superior Court Judge Sharon Lueras in Department 37 of Sacramento Superior Court. [¶] As similar to a stipulation, ladies and gentlemen, when I take judicial notice of a fact, you should accept that fact as proven."
The prosecutor said there was a stipulation regarding People's exhibit No. 1. "Defendant Ted King was present when the protective order was issued on February 19, 2009. [¶] Secondly, Defendant Ted King received a copy of the protective order in this case. It's been marked Exhibit 1. [¶] Third, in September and October 2009, Defendant Ted King resided at 1807 C Street in Rio Linda, California, 95673 being the zip code." Defense counsel joined in the stipulation. The prosecution rested, and so did defense counsel.
The jury was excused for a recess and the trial court addressed the exhibits. When the trial court said, "I take it there's no objection to 1," defense counsel objected to People's exhibit No. 1, stating: "Even though the Court took judicial notice of it being from the court file from that case, I still believe it to be hearsay as it's being used to prove the truth of the matter asserted in the document itself." Defense counsel said the effective dates of the protective order and the statutory authority for the order were hearsay. The trial court did not consider the dates to be hearsay and said that the order was "self-authenticating in terms of its authority." Defense counsel argued that a foundation was required to show that the judge issued the order under the statutory authority cited. Defense counsel queried whether the document was being admitted under the official records exception (Evid. Code, § 1280). The trial court responded that it was being judicially noticed as a court record and that defense counsel could attempt to establish that the protective order was not lawful. The trial court admitted People's exhibit No. 1.
The jury convicted defendant of intimidating a witness with force or threat (Pen. Code, § 136.1, subd. (c)(1); count three), battery (Pen. Code, § 242; count four), and violation of a protective order (Pen. Code, § 273.6, subd. (a); counts five and six). The jury acquitted defendant of two other counts charging violation of a protective order (counts one and two). In connection with the intimidation offense, the jury found that defendant acted maliciously and used force, or threatened to use force or violence.
The trial court sentenced defendant to four years in prison for the intimidation offense, a consecutive 120-day jail term for battery, and concurrent 120-day jail terms on each count for violating a protective order.
Defendant first contends that the trial court erred in admitting the prior protective order, because the protective order was hearsay and the official records exception (Evid. Code, § 1280) does not apply.
The trial court properly took judicial notice of the existence of the protective order, including the dates of the order. (Evid. Code, § 452, subd. (d); Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 438; Flores v. Arroyo (1961) 56 Cal.2d 492, 496-497.)
Contrary to defendant's assertion, however, the trial court did not take judicial notice of inadmissible hearsay, and it did not admit any facts under the official records exception to the hearsay rule (Evid. Code, § 1280).
We conclude that the trial court did not err in taking judicial notice of the protective order.
Defendant next contends that the protective order did not have res judicata effect. We agree. Defendant, however, appears to confuse "res judicata" with "judicial notice." Even if the protective order did not have res judicata effect, it was nonetheless an appropriate item for judicial notice.
We also reject defendant's challenge to the underlying protective order. Defendant did not offer any evidence in the trial court to show that the protective order was unlawful or to otherwise challenge the validity of the order. (See People v. Gonzalez (1996) 12 Cal.4th 804, 808-810, 816-819; In re Berry (1968) 68 Cal.2d 137, 148-149.) Because defendant did not raise a factual issue at trial with respect to the protective order, he cannot do so now on appeal. (People v. St. Martin (1970) 1 Cal.3d 524, 537-538.)
The record indicates that the protective order was issued as a condition of probation pursuant to Penal Code section 1203.097, subdivision (a)(2). To the extent defendant contends the protective order was issued pursuant to different authority, his contentions are not supported by the record.
In addition, the recent amendments to Penal Code sections 2933 and 4019 do not operate to modify defendant's entitlement to credit, as he was convicted of a serious felony (Pen. Code, § 136.1). (Pen. Code, §§ 1192.7, subd. (c)(37), 2933, subd. (e)(3), 4019, subds. (b) & (c).)
The judgment is affirmed.
We concur: BLEASE , Acting P. J. HULL , J.
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