Filed 12/18/17 P. v. Smith CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR ALEXANDER SMITH,

Defendant and Appellant.

F072958

(Madera Super. Ct. No. MCR044412)


OPINION

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant was convicted of inflicting corporal injury on Shannon, a cohabitant. Shannon’s son, Anthony, told police that he had heard his mother yell, “Stop Victor, you’re going to kill me.” At trial, Shannon refused to testify, and Anthony claimed he did not remember what was said during the incident. An audio recording of Anthony’s statement to police, in which he conveyed Shannon’s utterance to defendant, was played for the jury. Defendant contends this violated his right to confrontation under the Sixth Amendment. We disagree. The confrontation clause was satisfied with respect to Anthony because he was “confronted” (i.e., available for cross-examination at trial); and the confrontation clause is inapplicable to Shannon because she was not a “witness[] against” defendant (i.e., her statement was not testimonial).
Defendant waived his right to a jury trial on a special strike enhancement alleged against him. The trial court found the allegation true. Defendant claims the court’s determination that his prior offense was a “strike” violated his Sixth Amendment jury trial right under (See Descamps v. United States (2013) 570 U.S. 254 (Descamps).) We do not address whether Descamps afforded defendant the right to a jury trial here because even if it did, defendant waived that right.
We also conclude that sufficient evidence supported the trial court’s true finding on the strike enhancement.
Finally, we strike defendant’s sentence imposed on a count for which he was acquitted, and reduce related assessments. In all other respects, we affirm the judgment.
BACKGROUND
In a second amended information filed May 21, 2014, defendant Victor Alexander Smith was charged with felony corporal injury upon a cohabitant (count 1; Pen. Code, § 273.5, subd. (a)), and three counts of misdemeanor resisting a peace officer (counts 2–4; § 148, subd. (a)(1)). The information also alleged defendant had suffered a prior conviction of bank robbery (18 U.S.C. § 2113, subds. (a), (d)), which is a serious or violent felony. (§ 667, subds. (b)–(i).)
A jury convicted defendant on counts 1, 3, and 4. The jury acquitted defendant on count 2. The court found true the allegation defendant had suffered a prior serious or violent felony.
The court sentenced defendant to the middle term of three years on count 1, doubled to six years pursuant to section 667, subdivision (e)(1). The court sentenced defendant to four days with four days credit for time served for each of counts 2 and 3. Finally, the court sentenced defendant to six days with six days credit for time served on count 4.
EVIDENCE
On February 14, 2013, Anthony was in his room when he heard his mother, Shannon, and defendant arguing loudly in the living room. Anthony heard, “Stop Victor, you’re going to kill me.” He heard banging and heard Shannon scream. Anthony called 911 and said his mom’s boyfriend was beating her up.
Police officers arrived and encountered Shannon in or near the garage. She was frantic and scared, and had a “fresh” abrasion and swelling above her right eye. Shannon also had an open wound on her arm, swelling on the lower left side of her back, and redness, swelling, and scrapes on her arm.
Officers encountered defendant down the road from the house. Defendant cussed and yelled at the officers, and he smelled of alcohol.
At trial, Anthony claimed he could not remember what was said during the argument. He also claimed he did not hear anyone scream. Defense counsel declined to cross-examine Anthony.
At trial, Shannon answered a few preliminary questions before saying, “I have nothing else to say. I plead the Fifth. Nothing happened.” She refused to testify further.
DISCUSSION
I. Defendant Has Not Shown a Confrontation Clause Violation
Defendant challenges, on confrontation clause grounds, the admission of Anthony’s statement that he heard Shannon say, “Stop Victor, you’re going to kill me.”
A. Law
The confrontation clause affords criminal defendants the right “to be confronted with the witnesses against” them. (U.S. Const., 6th Amend.) The clause’s term “witnesses” means “those who ‘bear testimony.’ [Citation.]” (Crawford v. Washington (2004) 541 U.S. 36, 51 (Crawford).) Consequently, whether a person is a “witness” under the confrontation clause turns on whether they “bore testimony” – i.e., whether their statements are “testimonial.”
“[T]estimonial out-of-court statements have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th 608, 619.)
If the prosecution seeks to introduce a testimonial statement, the defendant must be given an opportunity to cross-examine the declarant. (U.S. Const., 6th Amend.)
B. Application
Defendant argues that Anthony’s statement was testimonial and Shannon was unavailable for cross-examination. While both of these premises are likely true, defendant’s claim nonetheless fails because Anthony was available for cross-examination at trial and Shannon’s statement was not testimonial. Thus, the confrontation clause was satisfied with respect to Anthony because he was “confronted” (i.e., available for cross-examination at trial); and the confrontation clause is inapplicable to Shannon because she was not a “witness[] against” defendant.
Defendant takes issue with both of our premises. First, he argues that Shannon’s statement was testimonial. Defendant cites cases holding 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” but 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.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.) Defendant argues that any emergency caused by the domestic violence was over when Anthony gave his statement. But Shannon’s statement is nontestimonial for reasons completely independent of the ongoing emergency rule described in Davis v. Washington. Shannon’s statement was an exclamation during an argument with her boyfriend in a house. It was not “made with some degree of formality or solemnity” nor did “its primary purpose pertain[] in some fashion to a criminal prosecution.” (People v. Dungo, supra, 55 Cal.4th at p. 619.) As a result, the statement was nontestimonial regardless of whether it was made during an ongoing emergency. Because Shannon’s statement was not testimonial, she was not a “witness against” defendant.
Second, defendant argues that Anthony was not made available for cross-examination because he did not testify at trial that Shannon had said, “Stop Victor, you’re going to kill me.” Instead, Anthony’s statement to police that Shannon had indeed said, “Stop Victor, you’re going to kill me[]” was introduced as an audio recording into evidence after Anthony testified. As a result, defendant argues his trial counsel had no incentive to cross-examine Anthony.
The confrontation clause is completely satisfied when the declarant of a testimonial statement is made available for cross-examination at trial. “When a declarant ‘appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’ [Citation.]” (People v. Murillo (2014) 231 Cal.App.4th 448, 455–456.) The confrontation clause does not require that an in-trial opportunity for cross-examination be coupled with any particular incentive for the defense to pursue cross-examination.
Additionally, Anthony could have been recalled by the defense after his statement to police was played for the jury.
In sum, there was no “witness[] against” defendant he was unable to “confront.” (U.S. Const., 6th Amend.) We therefore reject his confrontation clause claim.

II. Defendant Waived any Right to a Jury Trial With Respect to the Strike Allegation
Defendant argues that the trial court engaged in impermissible judicial fact finding in violation of his right to a jury trial when it determined his prior conviction for bank robbery was a “strike.” (See Descamps, supra, 570 U.S. 254.) But whether or not defendant was otherwise entitled to a jury trial with respect to the strike allegation under cases like Descamps is irrelevant because defendant expressly waived that right.
The constitutional right to a jury trial may be waived by a “affirmative, personal waiver” by the defendant. (People v. Eslava (2016) 5 Cal.App.5th 498, 507, review granted Feb. 15, 2017, S239061.) Here, defendant made an affirmative, personal waiver:
“THE COURT: We’re here with regard to the special allegation. [¶] Mr. Jones, does your client waive jury trial with regard to the special allegation?
“MR. JONES [defense counsel]: He does, Your Honor.
“THE COURT: Thank you very much. [¶] Mr. Smith, I need to hear that from you. Do you waive the right to have a jury trial on that issue?
“THE DEFENDANT: Yes.
“THE COURT: All right. Thank you. [¶] Gentlemen, any reason we can’t excuse the jury before we go on with the rest of this?
“MR. FOGG [prosecutor]: No, Your Honor.”
In his reply brief, defendant tries to parse his waiver by arguing he did not waive his right to a jury trial on the issue of whether his prior conviction constituted a “strike.” But the record, cited above, does not support the notion that defendant waived his right to a jury trial on some aspects of the strike allegation but not others. To the contrary, he waived his right to a jury trial with respect to the strike allegation entirely.
Defendant also says the law was “unsettled” as to whether he had a right to a jury trial on the strike allegation. It is true that when there is a substantial change in the law that “ ‘competent and knowledgeable counsel’ ” could not reasonably have been expected to anticipate, the issue is “not forfeited on appeal by counsel’s failure to object at trial.” (People v. Black (2007) 41 Cal.4th 799, 812.) This case is different. Defendant did not forfeit through inaction a right he did not know he had, but instead expressly waived a right the court acknowledged he did have.
Additionally, Descamps was decided before defendant’s court trial. As defendant points out, the question of whether Descamps provided a jury trial right in the context of facts concerning prior convictions may have been murky in California at the time. (See People v. McCaw (2016) 1 Cal.App.5th 471, 482, review granted Oct. 19, 2016, S236618.) But that uncertainty did not impact this case because, for whatever reason, defendant was clearly asked if he waived his “right to have a jury trial” on the strike allegation.
This case is also different from People v. French (2008) 43 Cal.4th 36, where the Supreme Court held that an express waiver of the right to a jury trial on the substantive offenses accompanying a no contest plea did not constitute a waiver of the right to a jury trial on aggravating circumstances. (Id. at p. 48.) At the time of the French defendant’s waiver, “no right to a jury trial on [aggravating] circumstances had been recognized.” (Ibid., fn. omitted.) Certainly, an express waiver of a jury trial on one issue cannot constitute a waiver of a jury trial on another issue. But here, defendant waived his right to a jury trial on the strike allegation itself without qualification or exception. In no way does our holding stretch that express waiver beyond its terms.
III. Sufficient Evidence Supported the Court’s “Strike” Finding
Defendant contends there was insufficient evidence to support the court’s true finding with respect to the strike allegation.
A. Law
“The prosecution is required to prove each element of an alleged sentence enhancement beyond a reasonable doubt. [Citations.]” (People v. Learnard (2016) 4 Cal.App.5th 1117, 1122, review granted Feb. 22, 2017, S238797.) ‘We review the record in the light most favorable to the judgment to determine whether it is supported by substantial evidence. [Citation.] “In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.’ [Citations.]” (Ibid.)
“ ‘[I]n the absence of countervailing evidence, … identity of person may be presumed, or inferred, from identity of name.’ [Citation.]” (People v. Saez (2015) 237 Cal.App.4th 1177, 1190.)
B. Background
At the court trial on the “strike” allegation, the prosecution offered an “Amended Judgment in a Criminal Case” from the United States District Court for the Eastern District of California. The judgment reflected that a defendant “Victor Alexander Smith, II” with a “Date of Birth” of “1976” was convicted of “Armed Bank Robbery” (18 U.S.C. § 2113, subd.(a) & (d)), among other crimes. Neither party disputed that “the crimes as set forth in th[e] amended judgment come within the meaning of section 667 subdivisions (b) through (i).”
During the court trial, defense counsel stipulated that defendant’s birthdate is April 28, 1976.
C. Application
Defendant argues there was insufficient evidence that defendant was the same Victor Alexander Smith convicted for the federal offense. We disagree.
Defendant’s name is Victor Alexander Smith. The federal judgment lists “Victor Alexander Smith, II” as the defendant. Defendant was born in 1976, and the Victor Alexander Smith referenced in the federal judgment was also born in 1976. Identity of first, middle, and last names, and birth year constituted substantial evidence that the Victor Smith referenced in the judgment is the defendant. (Cf. People v. Saez, supra, 237 Cal.App.4th at p. 1190.) No evidence to the contrary was introduced. We therefore reject defendant’s substantial evidence challenge.
IV. The Sentence on Count 2 Must be Stricken
The jury acquitted defendant on count 2. Nonetheless, the court sentenced defendant to four days in custody with four days credit for time served “[a]s to Count 2.” Both parties agree that this sentenced must be stricken and related assessments reduced. We accept this concession.
DISPOSITION
The sentence on count 2 is hereby stricken; the court operations assessment (§ 1465.8) shall be reduced from $160 to $120; and the criminal conviction assessment (Gov. Code, § 70373) shall be reduced from $120 to $90. The trial court is directed to prepare an amended abstract of judgment reflecting these changes, and to transmit the amended abstract to the appropriate parties and entities. In all other respects, the judgment is affirmed.


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POOCHIGIAN, Acting P.J.

WE CONCUR:


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FRANSON, J.


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MEEHAN, J.