IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
February 23, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSEPH AUGUST MARSALA, DEFENDANT AND APPELLANT.
(Super. Ct. No. MC-YK-CR-BF-09-932)
The opinion of the court was delivered by: Butz , Acting P. J.
P. v. Marsala
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Joseph August Marsala of false imprisonment (as a lesser included offense of kidnapping for purposes of rape), misdemeanor battery (as a lesser included offense of rape), torture, assault by means of force likely to produce great bodily injury, and dissuading a witness. It also sustained allegations of infliction of great bodily injury. It acquitted defendant of attempted murder, the making of criminal threats, and arson. Defendant admitted recidivist allegations. The trial court sentenced defendant to state prison in July 2010, limiting his conduct credits to 15 percent of his presentence actual custody calculated through June 2010 (Pen. Code, §§ 2933.1 [imposing this limit regardless of any other provision of law where there is a conviction for a violent felony], 206.1 & 667.5, subd. (c)(7) & (8) [torture (by virtue of punishment) and crimes involving infliction of great bodily injury included among violent felonies]).
On appeal, defendant argues the trial court erroneously: (1) admitted a transcript of hearsay declarations; (2) declined to grant judicial use immunity to a defense witness; (3) denied his request for an instruction on considering evidence of his good character in connection with reasonable doubt; and (4) calculated his conduct credits. The People properly concede the latter. We shall affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's convictions stem from his physical abuse of the victim in late May 2009 during an overnight stay at a transient campsite in the woods south of Little Castle Creek and west of Interstate 5 near the Crag View Drive exit. This is in Siskiyou County's southernmost reaches (with Dunsmuir just to the north). On the east side of the interstate (through a culvert for the creek) is a popular local swimming hole.
The victim, in her mid-thirties, had known defendant since her childhood in the Weed region of the county. They began "seeing each other off and on" in summer 2008. She had been addicted to methamphetamine and alcohol since her teens. At the time of trial, she was experiencing the after-effects of her injuries (including chronic pain, seizures, and poor short-term memory), which required her to take analgesics and psychiatric medications. She also had a pre-existing bipolar condition that required medication as well.
In February 2009, the victim and defendant left town. They met up with the victim's teenage son, who had stolen a car from his foster parents, and the three began a cross-country trip to Missouri (where defendant's father lived). The victim testified she left Siskiyou County to keep threats of violence away from her grandmother (with whom she lived) and younger child. She told her probation officer at the time that she was afraid that people with whom she had drug dealings were going to kill her.*fn1 Defendant left to avoid charges for inflicting great bodily harm on Cliff Taylor.*fn2 On the way, they stopped in Las Vegas for a couple of days, where the family of defendant's stepfather lived. They stayed in Missouri for a few weeks, after which the victim and her son returned to California by bus.
When defendant returned to California, the victim joined him reluctantly in Sacramento. She wanted to keep him away from her grandmother, because his behavior had become volatile while they were in Missouri. They camped for a while in the foothills while defendant panned for gold. The victim testified that defendant was being verbally and physically abusive.
Defendant had not been using drugs up to this point. After they had been in the foothills for a couple of months, defendant's brother and his girlfriend met up with them.*fn3 The quartet stayed a night at a "pink motel," where defendant inflicted physical abuse on the victim.*fn4 At some point on the following day, the victim asked the girlfriend to get them back to Siskiyou County because defendant would kill her if they left them behind. Defendant started hitting her in the car in front of the others. The victim said she was getting badly bruised, and the quartet spent the following night at a different motel; the victim testified the brother was concerned that defendant's behavior "was going to get them pulled over, and [defendant's] brother told him, 'You can't do this in public. You have to do this in private.'" Again, defendant subjected the victim to physical abuse throughout the night. Although she was screaming to draw attention, no one responded.
The following day, defendant was smoking drugs as they drove in the brother's girlfriend's car. Defendant began hitting the victim in front of the others, and continued his verbal abuse. At one point, the girlfriend stopped the car because she could not tolerate defendant's behavior any longer. Although the victim pleaded with the other two to put a stop to the abuse, neither said anything to defendant. They drove north on Interstate 5, stopping only once in Williams at a gas station (where defendant threatened to break the victim's jaw if she sought help) before they reached the exit for the Little Castle Creek encampment in the late afternoon. The victim again pleaded with the others not to leave her there with defendant. When a truck--parked nearby--departed, defendant punched her in the jaw.
Defendant forced the victim toward the encampment, striking her in the head and back as they walked through the culvert. However, defendant calmed down for a few hours. After it grew dark, someone parked a car at the swimming hole and honked. The victim assumed it was defendant's brother, because defendant returned with drugs. After taking them, defendant became "mean and explosive." He beat her continuously during the night and the following day of their stay. She began to have seizures.*fn5
On the following afternoon, defendant encountered a group of teenagers near the culvert, and asked them to call the police to summon medical assistance for his companion. When they followed him to the campsite, he claimed Taylor (his great bodily injury victim) had beaten her. He had also told the victim to give the same explanation to the paramedics when they arrived (the victim knew Taylor from past drug purchases).*fn6 She accordingly told this to a paramedic and a detective, alluding to being a casualty of a "drug war."
Defendant had left before assistance arrived, telling a witness that he needed to pursue the attacker. He later told a detective that an unknown assailant had attacked the victim in his absence, and the impetus for his flight was his outstanding warrant for inflicting great bodily injury.
When examined at the hospital, the victim had bruising over her entire body, a fractured nose, and a subdural hematoma. The victim also tested positive for methamphetamine. While the victim told a detective that defendant had rubbed her face with creosote, the examination did not find any signs of this. The victim also testified defendant had cut her genitalia with a sharp object, but an exam a week after her rescue did not show any signs of this.
I. Admission of Hearsay Evidence
The parties stipulated that defendant's brother was not available to testify because he intended to assert his privilege against self-incrimination. Having anticipated this, the prosecutor had moved to introduce a transcript of a pretext call between the victim and defendant's brother as a declaration against the brother's penal interest, asserting that his remarks could establish his potential liability as an accomplice or coconspirator.
Subject to proof that the brother was in fact the person to whom the victim was talking, that he was referring to defendant, and that he had personal knowledge of the facts to which he was referring,*fn7 the trial court ruled that the first two pages of the transcript contained statements that were against the brother's penal interest "in that they have a clear tendency to implicate him as a knowing actor in facilitating . . . the acts at the campsite." It further found that this probative value exceeded any resulting prejudice to defendant. Finally, it believed the hearsay was trustworthy in light of the circumstances under which the brother uttered it, his motivation, and the pre-existing relationships among the victim, the brother, and defendant. The court believed the brother was apparently attempting to repair the relationship between the victim and defendant in order to avoid defendant's prosecution for his actions. It admitted the victim's portion of the conversation solely to give context to the brother's statements and not as substantive proof.
A deputy, after establishing that in his presence he had the victim call a person whom she identified to him as being defendant's brother, read the following from the transcript. (Other than renewing foundational and hearsay objections, defense counsel did not assert any other basis for excluding this testimony.)
"[BROTHER]: It's just [']cause . . . he got high, dude. It was all my . . . fault. I knew what it--
"[VICTIM]: He does that when he gets loaded?
"[BROTHER]: Yeah. Especially when he loves someone, dude.
"[VICTIM]: It was . . . terrible, dude. He beat the brakes off me. I was so mad at you guys for leaving us at the tunnel.
"[BROTHER]: Yeah, I know. I felt all bad but--
"[VICTIM]: But it's going to be okay. I'm not going to give up on him.
"[BROTHER]: As long as he's not high, dude. I mean, he'll trip, but . . . --
"[VICTIM]: Just don't ever get him high again.
"[BROTHER]: Not like that, never.
"[BROTHER]: Ever." (Italics added.)
Defendant argues the emphasized parts of the conversation are not against the brother's penal interest and are merely "collateral" (citing People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte)). He also argues the discussion "falls far short [of] admitting any criminal liability" because it does not establish that the brother intended to facilitate or encourage defendant's assaults on the victim while "high"; rather it showed only that he felt moral blame. Defendant further argues that in light of the latter, the brother's statements lacked trustworthiness.
Hearsay statements of unavailable witnesses, which include witnesses asserting their privilege against self-incrimination (People v. Geier (2007) 41 Cal.4th 555, 583 (Geier); People v. Brown (2003) 31 Cal.4th 518, 535), are admissible if they are sufficiently likely to subject the declarant to the risk of criminal prosecution (Duarte, supra, 24 Cal.4th at pp. 610-611) and, when viewed as a whole in light of the circumstances in which uttered (including the declarant's possible motivations and relationship with the defendant, taking a realistic view of the actual nature of human conduct into account), have an adequate aura of trustworthiness (Duarte, at pp. 614-615, 617-618). The exception does not apply to any collateral portion of the statement that either is exculpatory, or otherwise positively serves the interests of the declarant and through implication shifts blame to others who might be involved in the crime. (Duarte, at pp. 611-613 [suggestions that the declarant's shot was not the fatal one inadmissible because it shifted blame to others]; cf. Brown, supra, 31 Cal.4th at pp. 536-537 [denied being shooter, but did not attempt to absolve self through shifting of blame to others; statement admissible].)
Even if admissible, the statement is nonetheless subject to exclusion if its value as evidence is outweighed when taking potential prejudice, confusion, or the consumption of trial resources into account. (Geier, supra, 41 Cal.4th at p. 584.)
We review the admission of hearsay under this exception for an abuse of discretion. (Geier, supra, 41 Cal.4th at p. 585.) We will find error only where it was unreasonable under these criteria to admit it.
The gist of the brother's statements are that he was in some fashion aware--without the victim telling him--that defendant had severely beaten her (whether through news reports or direct confirmation from defendant); that defendant was inclined to behave in this manner toward people he otherwise loved when under the influence of methamphetamine; and that the brother was remorseful because it was his fault that defendant was "high" and that the victim was left alone with defendant. When these statements are considered in context, with the victim's testimony that the brother had expressed concern about defendant's attacks on the victim during their stay at the motels attracting the attention of authorities and thus advised him to do it "in private," that he had seen defendant beating her at least during the trip to the campsite, and that he had apparently dropped off methamphetamine for defendant's use, this is sufficient to establish an intent by brother to facilitate the attacks on the victim (and perhaps even encourage them through the provision of the methamphetamine) such that brother's admissions went not merely to moral but to criminal liability. It was thus reasonable to find that the statements were against the penal interest of the brother. Contrary to defendant's view, nothing in his brother's statements was akin to the collateral remarks in Duarte that sought to deflect criminal culpability to anyone else.
As for trustworthiness, the brother was seeking to help defendant in the conversation, encouraging the victim to ascribe what had happened to methamphetamine that the brother promised would not be available again. Further, this was (as far as the brother knew) a private conversation rather than remarks made during police questioning (as in Duarte). It was therefore reasonable to find the statement trustworthy.
We accordingly conclude the trial court did not abuse its discretion in admitting this evidence. Not finding any error, we do not need to determine whether admission was prejudicial (either in isolation or in conjunction with the refusal to give an instruction on defendant's good character, an issue we next consider).
II. Good Character Instruction
Defendant raises a tripartite attack on the trial court's refusal to give the pattern instruction on consideration of evidence of his good character. He contends he was entitled to the instruction under state law, or as a matter of his federal rights to due process or equal protection.
In the course of settling instructions, defendant asserted that he was entitled to an instruction on evidence of his good character. When asked for the evidentiary basis for the instruction, defense counsel replied, "I believe there's been testimony by [defendant's stepgrandfather]. There was various witnesses talking about . . . them being a happy, loving couple," otherwise specifying, however, only an ex-girlfriend who testified that defendant "was a good guy." The trial court found this testimony did not "ris[e] to the level of a character trait that is normally encompassed by" the instruction. (CALCRIM No. 350.)
In the referenced testimony,*fn8 the stepgrandfather described defendant and the victim as being affectionate with one another while they stayed a couple of days with him in Las Vegas in the spring of 2009. An ex-girlfriend of defendant's had testified (pursuant to Evid. Code, § 1109) that defendant had hit her in the mouth in 1997 in Dunsmuir when she was eight months pregnant with their child (for which he later pleaded guilty to a felony).*fn9 However, she also testified as a defense witness, asserting that she did not have any continuing fear of defendant, and made him the godfather of her child with an unnamed brother of defendant's.
A. State Law
As People v. Bell (1875) 49 Cal. 485 (Bell) observed, "It is important in every criminal case, and especially so when the inculpatory proof is circumstantial in its character, that the jury should be instructed, if the prisoner so request, that in determining whether or not he is guilty beyond a reasonable doubt, his good reputation, if he have such, as to traits involved in the charge, should be weighed as any other fact established, and that it may be sufficient to create a reasonable doubt as to his guilt. Whether or not, in the particular case in hand, it would do so, was a question for the consideration of the jury . . . . [T]here may be cases so made out that no character, however high, can make them doubtful, while there may be other cases in which a high character would produce a reasonable doubt, when without it, the evidence [otherwise] might be considered as establishing guilt beyond a reasonable doubt." (Bell, at p. 490; accord, People v. Jones (1954) 42 Cal.2d 219, 224 (Jones).)
Generally, a defendant may present evidence of character in the form of opinion or reputation evidence, but not in the form of specific acts. (Jones, supra, 42 Cal.2d at p. 224; People v. Felix (1999) 70 Cal.App.4th 426, 431-432; People v. Honig (1996) 48 Cal.App.4th 289, 348; Evid. Code, § 1102.) However, People v. Callahan (1999) 74 Cal.App.4th 356, 379 (Callahan), held that where the prosecution has introduced propensity evidence in the form of uncharged specific criminal sexual acts (Evid. Code, § 1108), a defendant was entitled in rebuttal to introduce any "of the three types of character evidence--opinion evidence, reputation evidence, and evidence of specific incidents of conduct." (Italics added.)
From this defendant argues the proposition that, in light of the prosecution's introduction of the evidence of the two acts of uncharged domestic violence (Evid. Code, § 1109), the testimony regarding specific instances of his kindly behavior with the victim became admissible as rebuttal good character evidence. These specific instances, in turn, were substantial evidence in support of the requested pattern instruction (which flows from Bell) that directs a jury to take this evidence into account in deciding the issue of reasonable doubt.
The People, after we directed them to respond to this issue in supplemental briefing, assert Callahan involved admission of the evidence rather than determining whether the evidence was sufficient to warrant instruction on reasonable doubt from good character evidence. It is true Callahan does not directly make any reference to the latter; however, we believe it is necessarily implicit within Callahan's discussion of admissibility that the excluded evidence (asking the niece of a defendant charged with molesting another whether he had ever touched her inappropriately) would have warranted an instruction on the effect of the evidence. Otherwise, there would not have been any purpose in reaching the issue. The People also argue in conclusory fashion that the testimony of the stepgrandfather and ex-girlfriend "shed little if any light on [defendant's] proclivity for beating women." This may be true of the stepgrandfather's two-day contact, but does not apply to the father's observations over a period of several weeks, or the ex-girlfriend's present comfort level despite past physical abuse. Tautologically, specific acts are specific acts, not reputation or opinion. The People in point of fact are disputing the weight we should accord this evidence, not its sufficiency to support an instruction.
Ultimately, however, while we agree with the logic of defendant's proposition, we do not find the refusal of the instruction to be prejudicial. The present case is certainly not among those where "the inculpatory proof is circumstantial in its character," and is one of those "cases so made out that no character, however high, can make them doubtful." (Bell, supra, 49 Cal. at p. 490.) The late Justice Jefferson (an authority on evidence) has described even the more pervasive good character evidence of reputation or opinion as having only "slight" probative value "at best." (People v. Pic'l (1981) 114 Cal.App.3d 824, 892, reversed on different grounds in People v. Pic'l (1982) 31 Cal.3d 731, 734-735.) The mere incidents of good character in the present case were from two witnesses who had at best only limited opportunities to observe defendant's overall behavior with the victim, and a third who was the mother of defendant's brother's child. The victim's testimony provided direct evidence of guilt if credited. A physician testified that the victim had injuries that corroborated her account of at least the attack at the campground. Evidence of third party involvement was weak. We are convinced a more favorable result would not be reasonably probable if a jury were instructed to consider the specific instances of good character on the question of reasonable doubt about the victim's credibility.
B. Federal Law
Defendant contends that deprivation of his entitlement to an instruction on good character and reasonable doubt under Bell violated his federal right to due process, relying on Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175]. However, as People v. Breverman (1998) 19 Cal.4th 142, 170-172, explained at length, the erroneous refusal to give an instruction on a lesser included offense to which a defendant might be entitled under state law merely implicates the factfinding process and therefore does not deprive a defendant of any liberty interest as in Hicks (which involved the deprivation of a procedural sentencing right). What is true of an instruction regarding a lesser included offense is true of a pinpoint instruction linking evidence of good character with the burden of reasonable doubt.
Alternately, defendant argues a violation of his right to equal protection as compared with "defendants in other cases, where courts have held that [those] defendants [were] entitled to [the] jury instruction . . . ." At our direction, the People responded on the merits of this claim, invoking Beck v. Washington (1962) 369 U.S. 541 [8 L.Ed.2d 98]. The cited pages lay to rest defendant's attempt to assert a violation of equal protection. Responding to the litigant's claim that the failure to provide certain state procedural protections against a biased grand jury unconstitutionally discriminated against him, the United States Supreme Court tersely observed in Beck, "the petitioner's argument here comes down to a contention that Washington law was misapplied. Such misapplication cannot be shown to be an invidious discrimination. We have said time and again that the Fourteenth Amendment does not 'assure uniformity of judicial decisions . . . [or] immunity from judicial error . . . .' [Citation.] Were it otherwise, every alleged misapplication of state law would constitute a federal constitutional question." (Beck, at pp. 554-555 [8 L.Ed.2d at p. 110].) Defendant similarly cannot transform what may have been instructional error into error of constitutional magnitude.
III. Judicial Use Immunity
During trial, defense counsel challenged the prosecution's willingness to grant use immunity to the victim but not to the girlfriend of defendant's brother. In his motion, defense counsel represented that the brother's girlfriend could provide evidence contradicting the victim,*fn10 but would assert her privilege against self-incrimination if called to testify. Defense counsel contended the court should grant judicial use immunity over the prosecutor's objection (the prosecutor being unwilling to allow the brother's girlfriend to escape potential liability as an accomplice).
The court held a foundational hearing to determine the extent to which the brother's girlfriend would testify in the absence of a grant of immunity. In the brief examination that the prosecutor conducted before the court recessed for the weekend, the girlfriend refused to answer questions about her own drug use during the period in question or defendant's use of drugs.
When the hearing continued, the parties debated whether the witness was entitled to assert the privilege. The attorney appointed for the brother's girlfriend suggested the prosecutor ought to be able to tailor the cross-examination to avoid any admission on the part of the witness about her own drug use or drug use in her car. However, the prosecutor insisted these subjects were essential to effective cross-examination. Appointed counsel agreed that the girlfriend's own drug use was inexorably entwined with her observations during the time she spent with defendant and the victim. Defense counsel conceded this was a legitimate basis to assert the privilege. The prosecutor represented that she would move to strike direct testimony if there was an assertion of privilege in cross-examination.
Determining that the parties were in agreement that the witness would thus be unavailable absent a judicial grant of use immunity, the court entertained argument before deciding (under criteria hypothetically developed for the application of judicially granted use immunity) that the girlfriend's proposed testimony was not clearly exculpatory or essential to the defense, and that the girlfriend's possible role as an accomplice presented a strong countervailing interest on the part of the prosecution against a grant of immunity. The court declined to find that the prosecutor was attempting to distort the factfinding process in refusing to grant immunity to her.
Defendant renews the issue on appeal. He contends the trial court abused its discretion in evaluating the factors set forth in People v. Hunter (1989) 49 Cal.3d 957, 974 (citing from Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, 972) as applying if a court has the power to grant use immunity over a prosecutor's objections. Defendant admits that our Supreme Court has consistently avoided the question of whether a court has power to grant use immunity to implement a defendant's right to due process under federal or state law, and that the theory has fallen on stony jurisprudential ground other than in Smith.*fn11 He nonetheless asks us to engage in the academic exercise of determining if the trial court properly resolved the criteria for this presently nonexistent right.
Defendant has made his record in the trial court and preserved the issue on appeal. We reject his argument on the simple ground that, absent a ruling to this effect from the Supreme Court, defendant does not have any such right presently under any controlling state or federal authority. Defendant may now press the issue in the proper forum.
IV. Presentence Credits
The probation report calculated defendant's presentence custody credit as 373 actual days and 55 conduct days, for a total of 428 days (as of the original sentencing date, June 17, 2010). The trial court, however, did not sentence defendant until July 16, 2010, at which point it granted the credits based on those advance figures, without adjusting them. Defendant maintains, and the People correctly concede, that he is thus entitled to an additional 29 days of custody credit and five more days of conduct credit, for a total of 462 days.
The judgment is modified to award defendant a total of 462 days of actual custody and conduct credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the changes to credits and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: MAURO , J. HOCH , J.