(Los Angeles County Super. Ct. No. YA080285) APPEAL from a judgment of the Superior Court of Los Angeles County, James Brandlin, Judge.
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Carlton Mayham (defendant) was convicted of corporal injury to the mother of his child (Pen. Code, § 273.5, subd (a)).*fn2 On appeal, defendant contends that the trial court violated his state and federal constitutional rights to due process, a fair trial, and effective assistance of counsel by excluding him from the courtroom without an "audio or video feed"*fn3 allowing him to hear a trial witness's testimony. In the published portion of this opinion, we hold that under the circumstances, the trial court did not err by excluding the defendant without an audio or video feed from a portion of the trial. In the unpublished portion of the opinion, we hold that the trial court did not err in other rulings challenged by defendant. We affirm the judgment.
a. The Events of January 27, 2011
Trial commenced on June 27, 2011. Melvin Ramon Washington, a 911 operator at the South Los Angeles station dispatch center, testified that on January 27, 2011, at approximately 7:00 p.m., he received a telephone call from Christian Cornejo (Cornejo). The audio recording of the 911 telephone call was played for the jury, stating that Cornejo said she was on Imperial and New Hampshire, and defendant, "my son's father, he just busted my head open and I got blood all over my face. And he socked me with my son in my hand."
Los Angeles County Sheriff's Department Deputy Salvador Romero testified that at approximately 7:00 p.m., he and his partner arrived at Imperial and New Hampshire in Los Angeles, and he saw Cornejo in front of a liquor store near a pay telephone and her forehead was swollen and bleeding. Cornejo, who was with her child, was crying and distraught. Cornejo told Deputy Romero that she had been living with defendant for two years, and she was arguing with defendant about expenses for their child when defendant became angry and struck her in the face with his fist while she was carrying the child in her arms. Cornejo told Deputy Romero that the assault occurred in the parking lot area of the liquor store.
Fire Department paramedic Jeff Duran testified that at approximately 7:00 p.m., he arrived at the incident scene, saw that Cornejo had a laceration on her forehead and blood on her face, and she was complaining of shoulder pain. Cornejo said she was struck with a fist. Cornejo did not say females struck her with a fist. Cornejo and her child were transported to the hospital.
Dr. Julie Jacob, an emergency medicine physician working at Centinela Hospital, treated Cornejo. Cornejo had a two-centimeter laceration to her forehead requiring three stitches, and complained of neck and back pain. Cornejo said that her boyfriend hit her in the head with a cell phone.
Los Angeles County Sheriff's Department Detective Fred Jimenez testified at trial that on February 2, 2011, he contacted Cornejo and reviewed with her "the details and facts" of Deputy Romero's police report. Cornejo confirmed the facts in the report, but stated that she did not want "to pursue the case any longer" because defendant was "not in her life anymore." Cornejo did not tell Detective Jimenez that a female punched her or that anyone other than defendant had hurt her.
Detective Jimenez testified that on February 11, 2011, defendant was detained based on a "want request," and at 1:20 a.m. was "booked" at the South Los Angeles Sheriff's station. At about 9:00 a.m., Cornejo called Detective Jimenez and said that she had made up the story that she told the deputies, defendant had not assaulted her, and she "was beat up by females."
Detective Jimenez reviewed audio recordings of telephone calls between defendant and Cornejo that occurred when defendant was incarcerated (jail calls), because Detective Jimenez became suspicious of the timing of defendant's arrest and the subsequent telephone call he received from Cornejo during which she recanted her story. An audio recording of a February 11, 2011, jail call that defendant made to Cornejo was played for the jury. The following exchange occurred during that jail call: "[Defendant:] [Tell the detectives that] you know now that I thinkin' about it. Tell the detectives that I ain't seen you since my birthday. I ain't seen you like in a month. . . . We got [in] a fight. On my birthday. You thought I was cheatin' on you. . . . [¶] . . . [¶] [Cornejo:] No, you can't lie to dem. 'Cause dey got to the report. . . . [¶] [Defendant:] Listen here dude. Listen here dude. What is--I'mma tell dis and I'mma tell them. Quit talking to me, all right? I'mma tell you what happen. As far as I know of. Alright? Hello? [¶] [Cornejo:] Yeah. [¶] [Defendant:] Do you hear what I'm sayin'? [¶] [Cornejo:] Yes. [¶] [Defendant:] I haven't seen you since like the sixth of January or whatever you know what I mean. . . . Well I found out like a couple of days ago whatever that you got into a fight with this girl over at my momma house. I guess you was over on your way to see my moms and some girl walked up on you with a couple o' other girls you know what I mean? And they told you that you know, she fuckin' with me and yadda yadda yadda you know what I'm sayin' . . . . And I guess one of the girls hit you or some shit and like you know, you fell out. You know and then you was so mad at me because this girl said she fuckin' with me and you know what I'm sayin' that you know you told them that I did it you know. 'Cause you was so mad. 'Cause of the fact that you thought I was been cheatin' on you and all this. You thought I'd be cheatin' on you and all this. [Pause.] You hear me? [¶] [Cornejo:] Yeah. [¶] [Defendant:] . . . That's what happened--You know what I mean? Is that what happened? [Cornejo:] Yeah. [¶] [Defendant:] Uh huh. Well Detective Jimenez need to know that that's what happened. . . . [¶] . . . [¶] Can I say something? Or no? [¶] [Defendant:] Say something what? [¶] Like what about those-- [¶] [Defendant:] It don't matter. You lied, that's the bottom line. You lied because you was mad. But what really happen' is what I just said. . . . [Y]ou wanted me to get in trouble. . . . But I really didn't do that, but you know what I mean. . . . The one that said she was fuckin' with me and all this other shit. She the one did it. You know? [¶] [Cornejo:] So you not gonna stay in jail, right? [¶] [Defendant:] Nah! I can get out tonight, if you call this dude now! I know you got his number [¶] . . . [¶] [Cornejo:] Well. If you want, you can give them my number. [¶] [Defendant:] No, if you want, you can call up here. Aye-sap. . . . [¶] . . . . [¶] . . . You should be trying to work on get me up out of here. That should be your main goal right now. [¶] . . . . [¶] [Cornejo:] Hey baby boo, when I call . . . whoever he is. Um, like. What do I start sayin? Cause like. First of all, he gon' be like. [Pause] How he gon' be askin' me, like how the fuck did I know you was there? And why am I callin'? You know? Like? [¶] [Defendant:] You seen me get arrested. Or somebody just called you--somebody just called you that seen me get arrested. [¶] [Cornejo:] No. And you don't think that makes him suspicious like and stuff? [¶] . . . [¶] [Defendant:] You tell them I just finished talking to you. It don't matter because they tape record these conversations and they probably lookin' through the whole log anyway. . . . It don't matter how you know--"
1) Preliminary Hearing Testimony
On June 29, 2011, detective Jimenez, and Kevin Sleeth, the prosecutor's investigator, testified at trial that despite their efforts they were unable to locate Cornejo to testify at trial, and they were unsuccessful in attempting to serve her with a subpoena to testify at trial. The trial court said that Cornejo failed to appear for trial the prior day, June 28, 2011, and a body attachment was issued for Cornejo. The trial court found that Cornejo was unavailable to testify at trial, and a transcript of Cornejo's March 1, 2011, preliminary hearing testimony was read to the jury.
Cornejo testified at the preliminary hearing that on January 27, 2011, at about 7:00 p.m., she was near a liquor store on Imperial and New Hampshire in Los Angeles when she was approached by three women. One of the women confronted Cornejo about defendant, they started to argue, and the woman, who was holding a cellular telephone and had a couple of rings on her fingers, hit Cornejo on the forehead.
Cornejo testified that she called 911, but did not tell the operator about any women. Cornejo told the 911 operator that her husband had hit her, but she lied. After Cornejo called 911, the police arrived and what she told them was a lie. Cornejo was upset with defendant because she knew the woman was "messing around" with defendant. Cornejo had not seen defendant since his birthday on January 6, 2011.
Cornejo testified that about a week after the incident, she spoke to Detective Jimenez by telephone, and she was still angry at defendant. Cornejo did not tell Detective Jimenez anything about women hitting her.
Cornejo testified that defendant called her when he was arrested. According to Cornejo, she did not have a conversation with defendant in which he told her to say the injury was caused by women. Cornejo never told anyone about the women that caused her injuries until after defendant was arrested and she called Detective Jimenez about them.
The day after the transcript of Cornejo's preliminary hearing testimony was read to the jury, Cornejo appeared for trial and testified as a witness. Cornejo testified that she knew that she had been ordered to appear in court on June 16, 2011, and on June 28, 2011, for the trial of this matter, but she did not appear because she was angry and she "didn't want to be bothered with it."
Cornejo testified that she dated defendant from 2008 to the time of trial, except, as she testified on cross-examination, when defendant was "in jail." Prior to the incident, Cornejo and defendant were living together, "on and off." Defendant was Cornejo's boyfriend, but she called him her husband. Less than a year after Cornejo met defendant, they had a child. Defendant helped Cornejo pay the rent and helped support their son. Defendant and their son were Cornejo's "family," and they are "all I got." Prior to the January 27, 2011, incident, the last time she saw defendant was on January 6, 2011, when they celebrated his birthday.
Cornejo testified that on January 27, 2011, she encountered three women, one of whom said she was "fucking" defendant. Cornejo and the woman fought. The woman hit Cornejo twice, Cornejo fell to the ground, the woman kicked Cornejo, and the three women ran away. Cornejo's forehead was injured, which left a half-inch scar.
Cornejo testified that she lied to the 911 operator. Cornejo did not tell the 911 operator about women hitting her. Cornejo told the 911 operator that defendant hit her, but he had not. Cornejo was mad at defendant and "was thinking about get-back." Cornejo lied to the police when they came to the scene of the incident, saying that defendant had hit her because she had asked defendant for money to pay for their son's expenses. When the paramedics arrived, she lied to them and did not tell them about any women hitting her. When she went to the emergency room immediately following the incident, she did not tell an emergency room doctor that her boyfriend punched her with a cellular telephone in his hand.
The first time Cornejo spoke to defendant after the January 27, 2011, incident was on February 11, 2011, after defendant was arrested and defendant called her on the telephone. She told defendant about the women who beat her up. Defendant did not ask her to call Detective Jimenez. Since February 11, 2011, Cornejo spoke with defendant "a lot"--probably more than 10 times--and sometimes they talked about the case against defendant. Cornejo loved defendant and would "do anything for him."
According to Cornejo, on February 18, 2011, she had a fight with her brother over a television, and she told her brother, "Go ahead, call the police, because I'll tell them you tried to kill me." She added that the police were going to arrest Cornejo because they thought she had fabricated the allegation against her brother, and that prior to the January 27, 2011, incident, she had lied to the police.
Gail Pincus, the prosecutor's domestic violence expert, testified about the cycle of domestic violence. Victims of domestic violence often recant their stories and protect their abusers. It is also common for the victims to recant their admission of abuse and continue living with and having a relationship with the abuser.
Pincus opined, based on a hypothetical situation in which the abuser hits the victim, the victim calls 911 and reports the abuse, two weeks pass before the abuser is taken into custody and contacts the victim telling her to do something for him, and the victim is accommodating, the situation is consistent with someone who has experienced the domestic violence cycle. If the victim calls 911 and law enforcement becomes involved, and the abuser asks the victim to "fix" the situation, it is common for the victim to follow the abuser's instructions. The victim commonly denies that the abuse occurred, even after admitting the abuse occurred.
Dante Marshon Calvin, defendant's friend for 20 years, testified that from January 6, 2011, through February 10, 2011, defendant lived with Calvin and his wife in Hemet, and during that period, to Calvin's knowledge, defendant did not go to Los Angeles. Defendant did not have a car, and Calvin and his wife had one car. Calvin admitted that ...