(Super. Ct. No. MC-YK-CR-BF-09-932)
The opinion of the court was delivered by: Butz , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 ...