PEOPLE v. COSTELLO

Filed 1/12/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Thomas D. Glasser, Judge.  Affirmed with directions.

            John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

            A jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)), making criminal threats (Pen. Code, § 422) and inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a)).  In bifurcated proceedings, the trial court found true allegations that he had suffered two strike priors (Pen. Code, § 667, subds. (b)-(i)), two serious priors (Pen. Code, § 667, subd. (a)(1)) and three priors for which he served prison terms (Pen. Code, § 667.5, subd. (b)).  He was sentenced to prison for life (with a minimum parole eligibility of 75 years), plus a term of 25 years to life, plus 14 years.  He appeals, claiming evidence was erroneously admitted.  We reject his contention and affirm, while directing the trial court to correct an error in the abstract of judgment.

I

Facts

            On April 28, 2000, defendant killed the mother of his child and dumped her body in a trash can at her father's home, where she had been living.  More facts, including those related to defendant's making criminal threats to the victim and inflicting corporal injury on her, will be described below.

1.  Admission of the Victim's Statements

                        a.  Whether They were Spontaneous Declarations

            Over defense objection, the trial court admitted as spontaneous declarations six sets of statements by the victim to police officers--two concerning the non-homicide offenses and four concerning prior bad acts by defendant which were admitted under Evidence Code section 1109.  Defendant here contends that the trial court abused its discretion in concluding that these sets of statements were spontaneous declarations because the facts upon which the trial court relied in so concluding are not supported by a preponderance of the evidence.  (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.)  We disagree.

            The officer who responded to a dispatch concerning defendant's 1998 infliction of corporal injury on the victim (count 3) testified at a hearing pursuant to Evidence Code section 402 (hereafter, section 402 hearing) that he had been dispatched to the victim's home around 4:00 a.m.  The victim was crying, scared and extremely upset and she continued to sob as they spoke.  The right side of her face was red and swollen, she had blood at the entrances of her nostrils and there were cuts inside her lips.  The victim told the officer before he had a chance to ask her anything that defendant had assaulted her.  She went on to say that defendant had come to her home to discuss money and he got upset.  He slapped her several times in the face, knocking her to the ground.  He sat on her chest and choked her with both hands to the point where she thought she was going to pass out.  She broke away twice, but he gained control of her both times and resumed choking her.  Defendant went to a bedroom and the victim ran to a neighbor's home to call the police because there was no phone in her home.  As she made her way to her neighbor's, defendant walked past her and said, â€