(Super. Ct. No. 09F05669)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Gary Eugene Goethe, Jr., was convicted of inflicting corporal injury on a former cohabitant (Pen. Code, § 273.5). The victim did not appear at trial; she was declared unavailable and her testimony at the preliminary hearing was read to the jury. The trial court also admitted evidence of a subsequent act of domestic violence by defendant against the same victim through the testimony of the responding officer and a tape of the victim's 911 call.
Defendant contends the admission of the officer's testimony violated his confrontation rights under the Sixth Amendment because the victim's statements to the officer were testimonial as there was no ongoing emergency. He further contends the trial court abused its discretion in admitting the evidence over his Evidence Code section 352 objection. We disagree with defendant's contentions and shall affirm.
Defendant and Stephanie V. (S.V.) have two children together. They lived together until May 2009 when she "put him out." After that, S.V. was "sort of" dating Vincent Pattio.
The Offense of Conviction
On the night of May 31, 2009, Pattio was at S.V.'s house, along with her children and defendant's cousin. S.V. was in her bedroom when she heard a commotion and went to the living room. Defendant was inside at the front door. Defendant and S.V. got into an argument about Pattio's presence. Defendant punched S.V. and she fell to the ground. While she was on the ground defendant hit her and tried to kick her. He had "a lock on" her hair. Her braids in back were "ripped off."
S.V. got up and defendant's brother entered. Defendant fought with Pattio and defendant's brother also threw a few punches. Another of defendant's brothers came in, and Pattio was thrown into the wall and knocked out.
When S.V.'s mother, sisters, brother, and a friend arrived, she called the police. She told the 911 operator she and her boyfriend were jumped and her boyfriend had been knocked out. She had a lump on her head, and her arm and side were injured. S.V. said she wanted to press charges.
Defendant and his brothers, as well as Pattio, left before the police arrived.
When the police arrived, S.V. was shaking, yelling, and appeared about to cry. She had a half-inch cut to her left cheek and complained of pain in her ribs. Pictures were taken of the back of her head, her right shoulder, right arm and right side of her neck to document injuries. There was an eight-inch hole in the drywall in the living room.
S.V. was taken to the emergency room, but did not want to wait. She later went to her own doctor who gave her a neck brace. Her arm was in a sling for two weeks.
In subsequent interviews with a defense investigator, S.V. told different stories of what happened that night. In September, approximately four months after the incident, she told an investigator from the Public Defender's office she did not remember being hit, kicked, or knocked down by defendant. She did not remember her hair being pulled. At the preliminary hearing held in March 2010, she explained these responses by saying she was tired at the time and did not want to be bothered.
The following January, S.V. told the investigator she had lied to the police because she was mad at defendant. She was hoping he would find out about Pattio and she had called him that day to come get his stuff. She claimed she was in defendant's face with her fingers, cussing and calling him names. She pushed him. Then defendant and Pattio wrestled; she got punched trying to break up this scuffle. At the preliminary hearing, she explained she told that story to the investigator because defendant was her children's father and she did not want them to see him do time in jail.
Defendant's cousin who was there that night testified at trial that she let defendant in after he knocked. S.V. yelled at him that she could do what she wanted and sleep with whom she wanted. Defendant was about to leave when S.V. swung at him. S.V. continued to swing at defendant and hit him. Defendant then hit S.V. The cousin did not see defendant kick or punch S.V.; he was not the aggressor. She did not see defendant pull S.V.'s hair. The ...