P. v. Gilford

Filed 9/26/07 P. v. Gilford CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted of assault, burglary, and other crimes after he assaulted a woman outside her apartment. The victim refused to testify at trial, and her teenage son, who witnessed the assault, was unavailable. The trial court admitted the tape from a 911 call made by the victims son soon after the assault and statements made by the victim to medical personnel during her treatment for the injuries suffered in the assault. Defendant contends that this evidence was admitted in violation of his Sixth Amendment right to confront witnesses. Defendant also contends that his cross-examination of another witness was improperly limited, that the trial judge made improper comments that amounted to vouching for the credibility of police witnesses, that the court erred in polling the jury, and that errors were committed in sentencing. We modify the judgment by staying sentence on three counts, but the judgment is otherwise affirmed.

I. BACKGROUND

Defendant was charged in an information, filed October 3, 2005, with two counts of burglary (Pen. Code,  460, subd. (a); counts 1 & 2), and one count each of inflicting bodily injury upon a former cohabitant (Pen. Code,  273.5, subd. (a); count 3), assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1); count 4), battery resulting in serious bodily injury (Pen. Code,  243, subd. (d); count 5), and causing unjustifiable mental suffering to a minor (Pen. Code,  273a, subd. (b); count 6). It was further alleged that the burglary counts were serious felonies pursuant to Penal Code section 1192.7, subdivision (c)(18), and that, as to the assault and battery counts, defendant inflicted great bodily injury on his victim under circumstances involving domestic violence (Pen. Code,  12022.7, subd. (e)).

At trial, the victim was called to testify but refused to answer questions. Her son, J., who witnessed the assault, did not appear at the trial, having run away from home. Finding both witnesses to be unavailable, the trial court admitted evidence of their out-of-court statements.

The first such evidence was an audiotape of a 911 call made by J. near the time of the assault. Immediately after the dispatcher identified herself, J. said, Hey somebody just . . . this dude just stepped my mom . . . can you send uh, an ambulance please? The operator transferred J. to the paramedic operator, to whom J. repeated his explanation, saying, [T]his dude just broke in my, our house. The paramedic operator responded, We got 911 on the way, whats going on? Without further prompting, J. provided the operator with a vehicle license plate number, at which point the original dispatcher came back on the line. After brief confusion, the dispatcher reassured J. that help was on the way and then asked, Do you know this man who hit your mom? When J. said that he did, the dispatcher asked his name. J. identified defendant. The operator then asked where defendant went. J. responded, He uh, he left. He live at, uh Modesto, California. The operator then asked if defendant left in a car, at which point J. gave the same license plate number and described the car defendant was driving. After some urging by J. to speed the dispatch of assistance, the dispatcher asked whether J. saw the police at the scene yet, at which point he responded, Yes, I dont see no ambulance, hurry up . . . hurry up . . . hurry up . . . excuse me, can you tell them to hurry up? Look at my mom . . . look at my mom . . . look at my mom . . . look at my mom . . . hey, I know his license plate . . . yeah, I know his name is Dave Gilford . . . yes, my mom is down there on the floor . . . . At this point, the call terminated.

The prosecution also presented the testimony of the victims treating physician from the emergency room, who described her injuries and testified to statements made by the victim during her treatment. After his examination, the doctor had concluded that the victim had a contusion on her face, a possible concussion, and bleeding around one kidney, injuries which were consistent with punching or kicking. The doctor also read the notes taken by an emergency room nurse, who noted  assault by ex-boyfriend, patient punched and kicked in face, kicked in left flank . . . son witnessed and called 911.  The doctor testified that the nurse asked about the manner in which the injuries were inflicted because the type of assault could affect the nature of the injuries and their treatment.

A neighbor who witnessed at least part of the assault also testified. The neighbor was in the parking area of the complex where she and the victim leased apartments when she heard an argument. She looked up toward the apartments, which were on the level above the parking area, and saw a man and a woman standing outside one of the apartments. She watched as the man punched the woman twice in the face, the second time with sufficient force to knock her off her feet, and then kicked her twice and stomped on her. At this point the neighbor yelled, Stop, which caused the man to glance in her direction and then to run down the walkway connecting the apartments. At the end of the walkway, he jumped to the ground near where the neighbor stood and ran down the street. At trial, the neighbor identified defendant as the man she saw beating the victim. The neighbor also confirmed that J. witnessed the beating.

Among other witnesses, an officer who first responded to the scene testified that J. ran toward him as he approached, crying and asking for assistance for his mother. After checking briefly to see if the assailant was still around, the officer went to help the victim, whom he found lying outside the apartment, on the edge of consciousness and bleeding from an abrasion on her face. Investigating officers found that one window to the victims apartment, which was accessible by climbing a tree, was off its track, the lock broken, and that the victims bedroom was in disarray.

After the close of the prosecution case, the defense sought to recall the neighbor who witnessed the assault. Defense counsel told the court that after the neighbor completed her testimony, counsel had learned that her nephew, a school friend of J., also witnessed the beating and that she, the neighbor, had been a victim of at least threats of domestic violence by a former husband. Counsel argued that the nephews witnessing the assault made him a victim of the crime as well and that this connection and the past threat of domestic violence were grounds for bias.

The trial court denied the motion under Evidence Code section 352, concluding that neither the involvement of her nephew nor any prior threat of domestic violence would have interfered with the neighbors perception of events. The court concluded that the probative value is outweighed by the undue consumption of court time. And when I say that, Im not saying that because its 11:15; Im saying that because, in my view, its unimaginable that this witness . . . having previously been a victim of domestic violence of some sort with her ex-spouse would thereby be biased . . . . [] . . . The fact that she has been, perhaps, previously a victim of domestic violence, in my view, does not negate her ability to perceive and express her observations as she has done.

The trial court did, however, grant defendants motion to dismiss the first burglary count and the count charging injury of a former cohabitant on grounds of insufficient evidence. In addition, the court allowed the prosecutor to amend the enhancement charging infliction of great bodily injury from subdivision (e) of Penal Code section 12022.7 to subdivision (a), which does not require circumstances involving domestic violence. The jury subsequently found defendant guilty on the remaining counts and found true the enhancement allegations.

Defendant was sentenced to a term of seven years imprisonment. On the assault charge, the trial court sentenced defendant to the aggravated term of four years, adding an enhancement of three years pursuant to Penal Code section 12022.7, subdivision (a). The court added midterm sentences on the remaining counts to run concurrently with the assault sentence.

In explaining its selection of the aggravated term, the court characterized defendants crime as a vicious attack on a vulnerable victim, particularly appalling because defendant continued to kick the victim even after she had passed into near-unconsciousness. The court also noted that defendant had shown no remorse and had partially orchestrated the victims refusal to testify. Applying the determinate sentencing law, the court found no factors in mitigation and listed the following factors in aggravation: the crime involved great violence, great bodily injury or other acts disclosing a high degree of cruelty (Cal. Rules of Court, rule 4.421(a)(1)); the defendant engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); and the defendant had prior convictions that are both numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)). None of these sentencing issues had been expressly submitted to the jury.

II. DISCUSSION

Defendant raises several issues with respect to his conviction, which will be discussed in turn.

A. Admission of J.s 911 Tape

Because J. did not testify, defendant contends that admission of J.s 911 tape violated his Sixth Amendment right to confront witnesses against him as interpreted in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).[1]

The defendant in Crawford had committed a killing witnessed by his wife. When the police interviewed the defendant and his wife separately, their accounts of the killing differed in one critical respect. (Crawford, supra, 541 U.S. at pp. 3839.) Because the defendants wife was precluded from testifying at trial by the marital privilege, the prosecution was permitted to introduce the statements she made during the police interview. (Id. at p. 40.) The defendant contended that the admission of the statements constituted a Sixth Amendment violation because his exercise of the marital privilege prevented him from cross-examining his wife about them. (Ibid.)

After an extensive review of the history of the Sixth Amendments Confrontation Clause, the Supreme Court held that the clause does not apply to every out-of-court statement introduced in a prosecution but only to the statements of  witnesses,  whom the court defined as persons who  bear testimony.  (Crawford, supra, 541 U.S. at p. 51.) Recognizing this limitation, the court held that the Confrontation Clause regulates the admission only of [t]estimonial statements, which can be admitted when the declarant is absent from court only if (1) the declarant is unavailable to testify and (2) the defendant previously had an opportunity to cross-examine the declarant. (Id. at p. 59.) Because the out-of-court statements in Crawfordfrom a police interrogationwere so clearly testimony covered by the Sixth Amendment, the court decided to leave for another day any effort to spell out a comprehensive definition of testimonial [statement]. (Crawford, at p. 68.) The court did, however, distinguish testimony from casual conversation, limiting the former to [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.] (Id. at p. 51.)

The court had an opportunity to define testimonial statement with more precision in Davis v. Washington (2006) 126 S.Ct. 2266 (Davis). The declarant in Davis called 911 and told the dispatcher her former boyfriend was hitting her. The dispatcher asked the boyfriends name. After the declarant named the defendant, she told the dispatcher that he had run out the door. The dispatcher then collected more information about the defendant and the context of the claimed assault. When the declarant did not appear at trial, the tape of the 911 call was played for the jury. (Id. at p. 2271.)

Recognizing that the inquiries of a police operator in the course of a 911 call are in one sense a police interrogation (Davis, supra, 126 S.Ct. at p. 2274), the court nonetheless found that admission of the 911 tape in Davis did not constitute a Sixth Amendment violation. In attempting to define testimonial statement, the court held that, Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Id. at pp. 22732274, fn. omitted.) The court distinguished the objective circumstances of the Davis 911 call from those of the Crawford interview by noting that (1) the Davis call featured an account of events as they happened, rather than after the fact; (2) the call was placed not to provide an account of past events but to secure assistance; (3) the level of formality differed, with one interview in a calm police station and the other in the midst of a chaotic situation; and (4) the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operators effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. (Davis, at pp. 22762277.)

Here, the trial court held an evidentiary hearing before granting the prosecutions request to admit J.s tape. At that hearing, the 911 dispatcher was asked to explain her questions to J. She testified that she had been trained to ask 911 callers the name of the caller, the circumstances that are occurringwhats happening, what do you see; do you know who is involved by nameif you dont know them by name, can you describe them; weapons involvement, if any; and if you know the name and/or date of birth of any of the involved parties. When asked why those questions are asked, she responded, Those are to enable us to send the appropriate response so we can dispatch the police, if we need to send an ambulance or medical aid . . . . [a]nd then to maintain officer safety, to determine if there are any weapons on scene, so that we can send additional officers that they be aware of officer safety situation. The dispatcher confirmed that if theres a perpetrator out there, either on the scene, as youre receiving the call, or recently has maybe left the scene, that you have a description of that person, so that you can tell the officers, for example, hes got a black hat and white shirt on . . . . She also testified that upon receiving this information she passes it to the officers as they approach the scene, confirming that she asked J. the name of the assailant and the description of the car for this reason.

With this evidentiary background, it is difficult to distinguish J.s call from the call in Davis. As in Davis, the questions were asked by the dispatcher under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. (Davis, supra, 126 S.Ct. at p. 2273.) Regarding the objective criteria suggested by the Supreme Court, J. plainly made the call for the purpose of seeking assistance, rather than providing an account of the beating, and he was in a similarly chaotic situation. The name of the attacker and a description of his car were important in assisting the police in determining what type of threat they might meet at the scene, approaching the attacker if he was still present, or in attempting to find and detain him if he had left. Not only was J.s purpose in making the call to seek help, but because the police had not yet arrived these questions were asked to better prepare them to meet whatever challenge might be present.

Defendant properly points out that, unlike the victim in Davis, J. did not give an account of events as they unfolded, since defendant had already run away by the time J. made his call. This single factor is not, however, determinative of the constitutional analysis. As the above summary of the courts holding suggests, the courts primary focus was on the purpose of the caller in talking to the police and the purpose of the police in questioning the caller. When that purpose is to enable police assistance to meet an ongoing emergency (Davis, supra, 126 S.Ct. at p. 2273), the call does not constitute testimony. That the call is made while the crime is still occurring is simply one factor in determining the purpose of the call and the questions. It is plain that J. made his call to get assistance, and because the police had not yet arrived at the scene when the dispatcher was questioning J. about the attacker and his car, it appears that the dispatchers questions were asked for the purpose of assisting the officers in responding to an unknown situation at the scene. That the attacker had fled the scene when the call was made did not necessarily mean that the emergency was over. (See People v. Pedroza (2007) 147 Cal.App.4th 784, 791, 793794 [seriously burned victims response to police question, What happened? immediately after they arrived on the scene not testimonial, since question asked to permit officers to ascertain the nature of the situation].)

The same conclusion was reached recently in People v. Brenn (2007) 152 Cal.App.4th 166, in which the court affirmed, over Crawford challenge, the admission of statements made to a 911 dispatcher by a stabbing victim who did not testify at trial. Before making the 911 call, the victim left the house where the stabbing occurred, making the call from a neighbors home next door. (Brenn, at p. 170.) In response to the dispatchers question,  who did this to you,  the victim identified the defendant and briefly explained the circumstances of the stabbing. (Id. at p. 171.) In rejecting the defendants argument that Davis should not apply because the victim was no longer facing an emergency when he called 911, having gone next door, the court noted, At the time of the call, [the victim] was suffering from a fresh stab wound, [the defendant] was still at large, and it was unclear whether he still had any weapons or was searching for [the victim]. (Brenn, at p. 177.) In the same way, at the time J. made his call to 911, defendant had just left the scene, J.s mother appeared to be seriously hurt, and defendants whereabouts and intent were uncertain. We find Brenn to be indistinguishable on this point. Accordingly, J.s statements to the dispatcher were not testimonial statements under Crawford, and their admission was not precluded by the Confrontation Clause.

B. Admission of the Victims Statements at the Hospital

Defendant argues that the victims statements to the nurses and physician should have been excluded both because they were hearsay not subject to a recognized exception and because their admission violated his Sixth Amendment right to confront witnesses against him.

Following the victims refusal to testify, the trial court held an evidentiary hearing on the admission of the hospital records. The emergency room physician explained to the court that nurses are required to ask a patient about his or her injuries upon arrival for two reasons: to assess the seriousness of the patients condition in order to make a triage determination and to check for criminal violence, the latter required by state statute. When he sees the patient, the doctor repeats the inquiry for a somewhat different purpose. As the doctor explained, Mechanism is important. So if someone comes in complaining of pain, I have to know what may have caused it, what direction was applied. [] For example, if she has pain, if she felt a fall on to her back was the cause, I would consider certain things as opposed to falling in the front, blow to the back, blow to the front, or blow to the side. The doctor testified that, other than the assailants name, he gathered the information in the victims hospital records solely for treatment purposes, without considering its use in a future prosecution. He acknowledged that he took down defendants name only because he was required to do so by a state statute. The trial court subsequently ruled that, with the exception of defendants name and a reference to  D.V.  (domestic violence), the victims description of the extent and cause of her injuries would be admitted pursuant to Evidence Code section 1370.

Defendant first argues that the hospital records are testimonial, and therefore subject to the Sixth Amendment, because the information about the assault was collected for legal, not medical, reasons. Penal Code section 11160 requires [a]ny health practitioner who treats a patient whom the practitioner has reason to believe is the victim of self-inflicted violence, assault, or abuse to make a police report. Subdivision (b)(4)(D) of section 11160 requires the practitioner to report, among other information, the identity of the person whom the victim claims inflicted the wound.

This issue was resolved recently by our Supreme Court in People v. Cage (2007) 40 Cal.4th 965. The victim in Cage was found by a policeman sitting on a curb, suffering from a serious facial wound, and taken to the hospital. While the victim was awaiting treatment, the officer asked him to explain how he had received the facial wound. The victims answer implicated the defendant. Later, the treating physician asked a similar question and received a similar response. (Id. at pp. 971972.) The Supreme Court held that the statement given to the officer was testimonial, since any police emergency created by the assault had long since passed by the time the victim reached the hospital. In contrast, the court held that the same information provided to the physician did not constitute a testimonial statement because it was provided to deal with an ongoing medical emergencythat is, the victims treatment. (Id. at pp. 984986.) In the same way, the testimony during this hearing established that the information provided to the nurses and the emergency room physician was given for the primary purpose of facilitating the victims treatment, even if the medical personnel were aware that information suggesting suicidal or criminal behavior would need to be reported.[2]

Defendant argues that even if the victims statements were not testimonial, they were not covered by the applicable hearsay objection because they were not provided under circumstances that indicated their trustworthiness.[3] The trial court admitted the hospital statements under Evidence Code section 1370, which holds that an out-of-court statement purporting to describe the infliction of physical injury on the declarant is not hearsay if (1) the declarant is unavailable; (2) the statement was made near in time to the injury; (3) the statement was made in writing, was recorded, or was made to medical or police personnel; and (4) the statement was made under circumstances that would indicate its trustworthiness. (Evid. Code,  1370, subd. (a).) Subdivision (b) of section 1370 lists three factors to consider in determining whether the circumstances indicated trustworthiness: (1) whether the statement was made in contemplation of litigation, (2) whether the declarant had a motive for bias or fabrication, and (3) whether the statement is corroborated by independent evidence.

Contrary to defendants argument, we find that the circumstances presented here were uniquely suited to indicate trustworthiness. The victim provided these statements in order to receive medical treatment for what were, at the time, extremely painful injuries. There is no evidence suggesting she had a motive to fabricate; on the contrary, she had every reason to be frank and truthful with the medical personnel in order to receive prompt and appropriate treatment. Although the factors listed in Evidence Code section 1370, subdivision (b) are by no means comprehensive, they fully support a conclusion that these circumstances indicated trustworthiness. The victim was not contemplating litigation; there was no evidence that the victim had any preexisting motive to fabricate charges against defendant; and there are independent eyewitness reports confirming the fact of the beating and linking defendant to it.

While it is true that, as defendant argues, the victims identification of an ex-boyfriend as her attacker was not critical to her receiving proper care, the determination of trustworthiness is not determined by the content of a statement. Rather, we must look to the circumstances surrounding the making of the statement to determine whether those circumstances indicate that the statement is likely to be reliable. (People v. Pantoja (2004) 122 Cal.App.4th 1, 1112.) In this case, the statement was made near the time of the assault for the purpose of receiving treatment of the wounds inflicted. In the absence of evidence suggesting that the victim had a preexisting motive falsely to identify defendant, these circumstances strongly indicate reliability.[4]

We also find no prosecutorial misconduct in the prosecutions limited examination of the victim on the stand, which did not feature the introduction of any out-of-court statements. (Compare People v. Rios (1985) 163 Cal.App.3d 852, 864865.) Any such misconduct was, in any event, harmless error in light of the substantial evidence bearing on defendants guilt.

C. Denial of Further Examination of the Neighbor

Relying largely on Davis v. Alaska (1974) 415 U.S. 308, defendant argues that the denial of his requested impeachment cross-examination of the neighbor constituted a third violation of the Confrontation Clause.

In Davis v. Alaska, the trial court precluded the defendant from cross-examining a critical teenage prosecution witness about his probation status and criminal history, both of which provided a motive for fabrication, because state law protected the confidentiality of a minors criminal records. (Davis v. Alaska, supra, 415 U.S. at p. 311.) The Supreme Court noted that the use of cross-examination to discredit a witness is the primary right secured by the Confrontation Clause. (Id. at p. 316.) Because the trial courts ruling denied the defendant his right of effective cross-examination of the witness, the court found a Sixth Amendment violation. (Id. at p. 318.)

Subsequent case law has made clear that the right to effective cross-examination under Davis v. Alaska is not a right to unlimited cross-examination. As our Supreme Court has articulated the current standard:  [A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness. [Citation.] However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] . . . Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 946; see similarly People v. Smith (2007) 40 Cal.4th 483, 513.) A Davis v. Alaska violation does not mandate reversal of a criminal conviction if the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman). (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)

We agree with the trial court that the cross-examination sought by defendant had little, if any, bearing on the neighbors credibility. Defendant provides no convincing reason why the neighbors past experience of domestic violence or the presence of her nephew would have influenced her perception of, or her testimony about, the events taking place at her apartment building that day. She merely recounted events that she watched unfold. She had little or no personal connection to the participants; although the victim lived in the building, the witness did not know her name at the time of the assault. Moreover, there is no evidence that, at the time she witnessed the assault, the witness was even aware that it could be classified as domestic violence.

Defendant speculates that a history of domestic violence might have given the witness a motive to punish someone for the abuse she herself had suffered, thereby leading her to identify as the assailant the person presented to her by police. If there were more questions about the course of events that dayif, for example, the person to be cross-examined was the only witness to the events recounted, as in Davis v. Alaskathis speculation might have had some persuasive force with the jury. Here, however, the witnesss account of events was bolstered by J.s 911 call, the victims statements at the hospital, and the physical evidence at the scene. Further, whether or not the witness was biased by her personal history, her identification was already subject to impeachment because it occurred for the first time in the unavoidably suggestive circumstances of the preliminary hearing. Defendant had a full opportunity to explore this topic on cross-examination. The additional evidence that the neighbors nephew witnessed the beating or that the neighbor had a history of domestic violence would have added little to such impeachment. There is no reason to believe the cross-examination denied by the court would have produced a significantly different impression of the neighbors credibility, necessary to support a Confrontation Clause claim.[5]

D. Refusal to Excuse Certain Jurors

During the voir dire of individual jurors, one juror expressed concern about the courts direction that police officers should not be afforded more credibility than other witnesses merely by virtue of their status as officers. In discussing the issue with that juror, the court commented, There might be some reasons sometimes why an officer gets credibility. And Im not sure if this is why. For instance, an officer is trained to make certain observations. They go to the police academy. They learn how to observe. They write reports. Writing their reports shortly after they make the observances. They collect evidence. So sometimes their observations are more keen than maybe your eye. I dont know. [] Sometimes they have less bias, in a sense, that they work every day at their job. And if they are to lie, then theyd lose their job ultimately. [] On the other hand, the system is made of people. And people are fallible. And sometimes theres a bad egg in that system. So you have to always have a keen and watchful eye for those things. [] [Defense counsels] point, I think, was: You know, would you give a police officer more weight only because he is a police officer? In other words, not because hes trained, not because maybe hes learned how to observe better than the average person but just because he was putting a uniform on. When the same issue was discussed by the prosecution with a second juror, the trial court interposed, If a person comes here with a particular motive or bias, and you see that motive or bias, then that person is, perhaps, less credible than a person that has no bias or motive to lie. . . . [] . . . Just because a persons in uniform, doesnt make you automatically perfect. But there are certain factors that go in the wearing of a uniform, like your training. [] Those types of things. Those things you do consider. But just me putting on a police officer uniform tomorrow and showing up in court doesnt make me credible necessarily.

Following the questioning, defense counsel challenged the two jurors for cause, concluding that voir dire demonstrated that the jurors would not be able to weigh the testimony of police officers impartially. The court declined, explaining that it became clear [during questioning] they wouldnt just believe a police officers testimony, they would[nt] just be for the fact that that person is a police officer, but would consider the other facets of the person pursuant to all the requirements. Defense counsel then used peremptory challenges to remove the two jurors.

Defendant expresses his belief that the court erred in refusing to dismiss these jurors for cause, but he does not assert this error as a ground for reversal, recognizing that neither juror actually sat on the jury.[6] Instead, defendant contends that the court created structural error in the trial by, in effect, vouching for the credibility of police officers through his comments to the two jurors.

Vouching is an error ordinarily restricted to prosecutors. A prosecutor is said to vouch for the credibility of a witness when he or she attempt[s] to bolster a witness by reference to facts outside the record. [Citation.] Thus, it is misconduct for prosecutors to vouch for the strength of their cases by  invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] . . . Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record. [Citations.] (People v. Huggins (2006) 38 Cal.4th 175, 206207.) In the federal cases cited by defendant, the courts held that a prosecutor vouches, and therefore commits misconduct, when he or she suggests to the jury that a police officers testimony should be given heightened credibility because the officer would face departmental disciplinary action or prosecution for lying on the witness stand. (E.g., U.S. v. Kornegay (1st Cir. 2005) 410 F.3d 89, 97; U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146; U.S. v. Combs (9th Cir. 2004) 379 F.3d 564, 574; U.S. v. Boyd (D.C. Cir. 1995) 54 F.3d 868, 871.)

Unlike the prosecutors in these federal cases, the trial courts comments did not constitute vouching for the police witnesses. Vouching is necessarily a technique applied to specific, individual witnesses. In its most general form, it is an attempt by the prosecutor to suggest that facts known to the prosecutor but not introduced at trial support the truthfulness of a particular witnesss testimony. In the federal cases mentioned above, for example, the prosecutor invoked the threat of officer discipline or prosecution in the absence of evidence that the particular law enforcement agency in fact conducts such procedures or undertakes such prosecutions. Alternatively, vouching is an attempt to place the prestige of the government behind a particular witness by, for example, invoking the general concept of police integrity to support the truthfulness of a particular officers testimony. In this case, the trial judge made clear that he was speaking hypothetically only. The courts comments did not concern the particular officers slated to testify but addressed the potential testimony of police officers generally.

Moreover, the purpose of the trial judges comments was not to bolster the credibility of officer testimony but to distinguish between the objective factors that might, in some cases, lend support to the credibility of a police officers testimonyin particular, experience and trainingand the impermissible, if understandable, bias that arises from the respect that many persons hold for police officers.

Nonetheless, while the court was correct to cite officers training and experience as factors that might, in some prosecutions, lend credibility to police testimony if proven, he went too far in suggesting to the jury that if they are to lie, then theyd lose their job ultimately. At bottom, that is precisely the type of extra-record assumption that results in impermissible bias in favor of police officers merely because of their status as officers.

While this particular comment was ill-advised, we do not agree with defendant that the jurors were taught . . . to favor the testimony of police officers over the testimony of lay witnesses. The judges comment must be viewed not in isolation but in the context both of the entirety of his comments and the proceedings as a whole. The trial judge made clear through the remainder of his comments that the testimony of officers must be judged on their particular circumstances and qualifications, not on the basis of any preconception about the rectitude of police officers as a group. The same point was repeated several times by both the prosecutor and defense counsel in their questioning of jurors, and it was touched on by standard jury instructions delivered by the court, including CALJIC No. 1.00 [verdict must be based on evidence presented in court], CALJIC No. 2.20 [factors to consider in weighing the credibility of individual witnesses], and CALJIC No. 2.22 [weighing conflicting testimony]. Taken as a whole, we do not believe that the process of juror selection and instruction impermissibly biased the jury in favor of police officer testimony. Certainly any misimpression created by the court did not create the type of fundamentally unfair trial necessary for a finding of  structural defects  evading harmless error analysis. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281.)

Further, any error by the court was harmless in this case, even under the harmless beyond a reasonable doubt standard of Chapman. Although police officers did testify in this trial, their testimony was of minor importance on most of the charges. There was no dispute at trial that the victim was badly beaten. As noted above, the central issue was whether defendant was the person who inflicted the beating. As to this issue, the police officers testimony added little or nothing. By the time they arrived, the person who beat the victim had left the scene. It was largely J.s 911 tape that provided the critical link to defendant. Beyond confirming that J. was on the scene and was highly agitated, the officers testimony did not touch on the issue of identification. While the officers did provide the evidence that someone had broken into the victims apartment, supporting the charge of burglary, this evidence did not in any way tie the crime to defendant. Further, because the evidence of a break-in was not contested, any undue weight given to the officers testimony on the burglary charge was immaterial. In short, whether the jury gave heightened credibility to police officer testimony in this trial had little or no bearing on the outcome. Accordingly, we find no grounds for reversal as a result of either the trial courts refusal to discharge the two challenged jurors or the trial courts comments during juror voir dire.

E. Error in Juror Polling

When polling the jury after rendition of the verdict, the court asked each juror whether the verdicts read by the foreman were their verdicts, rather than are their verdicts. Defendant contends that this error requires reversal.

We assume, without deciding, that the trial courts phrasing was improper. The purpose of polling the jury is to give each juror the individual opportunity to confirm or dissent from the verdict in open court, hopefully ensuring that the unanimous judgment is free of any coercion or inducement. (E.g., Government of the Virgin Islands v. Hercules (3d Cir. 1989) 875 F.2d 414, 417.) Read literally, the courts questionIf they were your verdicts, simply respond by stating yes they weresought only to confirm whether the verdict read in open court reflected the vote of each juror in the jury room. It does not expressly authorize the dissent that lies at the heart of jury polling. (See, e.g., Ragusa v. Lau (1990) 119 N.J. 276, 575 A.2d 8, 10; Wilson v. State (1956) 93 Ga.App. 375, 91 S.E.2d 854, 856.)

Nonetheless, any objection on this ground was plainly waived. (People v. Flynn (1963) 217 Cal.App.2d 289, 295 [any defect in jury poll process must be raised at the time]; People v. Porter (1955) 136 Cal.App.2d 461, 469.) Any error would have been readily corrected by a timely objection. Had defense counsel been concerned that the trial courts phrasing precluded a proper poll, he could have pointed out the problem and asked for a second poll. His failure to do so waives the issue.

Further, we find any error to have been harmless. Defendant argues that error in the polling of a jury is reversible per se, citing a number of federal cases. (E.g., U.S. v. F.J. Vollmer & Co., Inc. (7th Cir. 1993) 1 F.3d 1511, 1522; Government of the Virgin Islands v. Hercules, supra, 875 F.2d at p. 419; Miranda v. United States (1st Cir. 1958) 255 F.2d 9, 18.) We agree with People v. Masajo (1996) 41 Cal.App.4th 1335, that this federal rule is inconsistent with our practice, which is to subject procedural error such as this to a harmless error test. (Id. at p. 1340.)[7] Because there is no constitutional right to a jury poll (ibid.), we apply the harmless error test of People v. Watson (1956) 46 Cal.2d 818 at page 836, which asks whether it is reasonably probable defendant would have achieved a more favorable result if the court had not committed procedural error.

A more favorable result would have required one of the jurors to disclaim the verdict. There is no reason to believe, however, that this would have occurred if the court had said is rather than was. Defendant presented no evidence to the trial court that, in fact, one of the jurors was misled by the court into suppressing his or her dissent to the final verdict. Further, it is unlikely that any individual juror who actually held a dissenting view would have been discouraged from expressing that view merely because the court used the past, rather than the present, tense. Regardless of the language employed by the court, the purpose of the polling procedure was fairly self-evident. Finally, the jury rendered its verdict in less than two hours of deliberation, suggesting ready unanimity rather than contention. There is nothing in the record to suggest that a differently phrased poll would have elicited a different result.

F. Evidence of Prior Convictions

Defendant argues that there was insufficient evidence to support the finding that he was made ineligible for probation, except under unusual circumstances, by his prior felony convictions pursuant to Penal Code section 1203, subdivision (e)(4). Those prior convictions were proven by the introduction of certified court records from prior prosecutions. At the time, defendant made no objection to the introduction of these records and offered no evidence suggesting that they did not pertain to crimes he committed. Defendant now contends that the prior convictions were required to be proved beyond a reasonable doubt and that the use of court records was inadequate to carry this burden without evidence that he was the same person as the David Gilford mentioned in the records.

The claim fails for two independent reasons. First, because Penal Code section 1203, subdivision (e)(4) does not increase the penalty for a crime, prior convictions supporting a finding under that section need not be proven beyond a reasonable doubt. (People v. Dorsch (1992) 3 Cal.App.4th 1346, 1350.) Second, even if the prior convictions must have been proven beyond a reasonable doubt, records of prior convictions bearing the same, or even a similar, name as that of the defendant are sufficient to support a finding of conviction beyond a reasonable doubt when the defendant presents no evidence suggesting that he or she is not the person identified in the records. (People v. Mendoza (1986) 183 Cal.App.3d 390, 401; People v. Brucker (1983) 148 Cal.App.3d 230, 242.) Defendant claims that his identification as David Gilford III in some of the records is evidence sufficient to rebut identity because he was never identified as III at trial. In both Mendoza and Brucker, however, the conviction records bore names different from those the defendant used at trial. In both, the records were found sufficient in the absence of contrary evidence.

In any event, this error was plainly harmless. The trial judges comments at sentencing demonstrated that he viewed this as a very serious crime. Among other harsh characterizations, the court expressed the view that defendants crime was an appalling and vicious attack that deserve[d] no leniency. Even without proof of the prior convictions, there was no possibility that the court would have granted probation to defendant.

G. Cunningham Issues

At the time the court sentenced defendant, People v. Black (2005) 35 Cal.4th 1238 authorized the court to make its own factual findings under California Rules of Court, rule 4.421. During the year since defendants sentencing, the United States Supreme Court has overruled Black in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which held that the California determinate sentencing law is subject to the constitutional requirements of Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Defendant argues that because none of the aggravating factors used in sentencing him was submitted to the jury, the imposition of the upper term sentence violated Blakely.

In Blakely, the United States Supreme Court extended to state determinate sentencing statutes the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), that  [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.  (Blakely, supra, 542 U.S. at p. 301.) In Cunningham, the court confirmed that Californias determinate sentencing law is covered by this rule, requiring any sentence greater than the middle term to be based on facts found by the jury. Because the trial court sentenced defendant to the upper term on the assault charge in part on the basis of facts that were not submitted to the jury, albeit properly under the law governing at the time, the court arguably violated defendants constitutional rights as articulated in Blakely.

In its decision on remand in People v. Black (2007) 41 Cal.4th 799, 812 (Black II), the Supreme Court addressed the circumstances under which an apparent Blakely violation requires reversal of a defendants sentence. The court concluded that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II at p. 812.) The Supreme Court affirmed the upper term sentence imposed in Black II after concluding that two aggravating factors had been established consistently with Blakely. First, the court held that the jurys finding true the allegation that defendant committed the offense of continuous sexual abuse by means of force, violence, duress, menace, and fear of immediate and unlawful bodily injury permitted the trial court to consider the defendants use of force in committing the crime as an aggravating factor in sentencing. (Id. at pp. 816817.) Second, the court held that the trial court was permitted to find the aggravating factor that  defendants prior convictions . . . are numerous or of increasing seriousness  on the basis of its own examination of the defendants prior criminal record, without submitting this factor to the jury. (Id. at p. 819, quoting Cal. Rules of Court, rule 4.421(b)(2); but see People v. Sandoval (2007) 41 Cal.4th 825, 839843 [reversing imposition of upper term where none of the aggravating factors relied on by trial court were established consistently with Blakely].)

Black II is controlling here. The jury necessarily found as an element of assault under Penal Code section 245, subdivision (a)(1) that defendants crime was committed using force likely to produce great bodily injury, and the jury expressly found in affirming the section 12022.7, subdivision (e) enhancement that defendant inflicted great bodily injury. This same finding is an element of the aggravating factor of rule 4.421(a)(1) of the California Rules of Court, cited by the trial court, which lists as a circumstance in aggravation that [t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.The trial court also relied in part on the numerosity of defendants prior convictions,which it was permitted to do under Black II. On the basis of either of these two factors, defendant was eligible for the upper term sentence. Under the reasoning of Black II, the sentence must be affirmed.

Defendant argues that he should be resentenced because the trial court also relied in sentencing on its conclusion that defendant had influenced the victims decision not to testify, a conclusion apparently based on prison phone call recordings not played to the jury. This factor was not only not found by the jury, but it was also based on evidence that the jury did not hear. While we recognize that reliance on this factor was improper under Blakely, defendants argument is foreclosed by Black II, which requires affirmance of an upper term sentence so long as defendant could be found eligible for the upper term on the basis of factors established in a manner consistent with Blakely.[8]

H. Penal Code Section 654

The trial court found that the convictions on all charges other than assault were subject to Penal Code section 654, which provides that [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. In effect, the court found that each of these counts punished the same criminal act as the assault charge. Under these circumstances, the court was required to stay the sentences imposed for the remaining charges, rather than to run them concurrently with the assault sentence. (People v. Deloza (1998) 18 Cal.4th 585, 594 [Section 654 does not allow any multiple punishment, whether concurrent or consecutive].)

The Attorney General concurs that the trial court erred and properly consents to modification of the judgment to reflect a stay on the sentences for burglary, battery, and infliction of unjustifiable mental suffering to a minor (counts 2, 5, and 6), rather than concurrent sentences.

III. DISPOSITION

The judgment is modified to stay the sentences imposed on the charges of burglary, battery, and infliction of unjustifiable mental suffering to a minor (counts 2, 5, and 6). The judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract of judgment to the California Department of Corrections.

_________________________

Margulies, J.

We concur:

_________________________

Stein, Acting P.J.

_________________________

Swager, J.

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[1] The Attorney General argues at length that the 911 transcript was properly admitted under an exception to the hearsay rule. Because defendants brief does not contend that the tape was inadmissible hearsay, but only that its admission violated his Sixth Amendment rights, we do not discuss the hearsay issues addressed by the Attorney General.

[2] The only information provided largely for legal, not medical reasons, was the precise name of the assailant. The trial court excluded this evidence, mooting any Sixth Amendment objection to its admission.

[3] Defendant also attempts to convert this into a constitutional argument by asserting that a statement found nontestimonial under Davis, supra, 126 S.Ct. 2266 is nonetheless subject to the requirements of Ohio v. Roberts (1980) 448 U.S. 56, which imposed a Sixth Amendment requirement of trustworthiness on out-of-court statements. Because Crawford held that a statement must be testimonial before it is subject to the Confrontation Clause, however, the Sixth Amendment requirements of Roberts have been rendered irrelevant once a statement is found not to be testimonial. (Whorton v. Bockting (2007) 127 S.Ct. 1173, 1183.) For the same reason, defendants argument that Evidence Code section 1370 is not a firmly rooted hearsay exception is also irrelevant.

[4] Defendant cites People v. Price (2004) 120 Cal.App.4th 224, as holding that Crawford requires an opportunity for cross-examination before an out-of-court statement can be found reliable under Evidence Code section 1370. While it is true Price contains this broad statement (id. at p. 239), it is clear that Price intended the requirement to apply only in the context of a statement found testimonial under Crawford, consistent with the constitutional requirements for admission of such statements. (Price, at p. 239.)

[5] We disagree with defendant that cases involving juror selection are relevant in this context. In choosing jurors, the court seeks to screen out those whose background could affect the impartiality of their judgment in evaluating evidence. The same background would not necessarily affect the impartiality of a persons perception and account of events.

[6] To the extent defendant does contend that the courts refusal was prejudicial error, the claim fails because defendant does not demonstrate that the failure actually affected his right to an impartial juryfor example, because the denial required him to accept an incompetent juror. (See People v. Hillhouse (2002) 27 Cal.4th 469, 487.) At trial, defendant did not ask for additional peremptory challenges and expressed