Filed 2/23/22 P. v. Guzman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Michael Anthony Guzman appeals the judgment entered after a jury convicted him of inflicting corporal injury on a fellow parent (Pen. Code,[1] § 273.5, subd. (a)), cruelty to a child (§ 273a, subd. (b)), and resisting a peace officer in the performance of his duties (§ 148, subd. (a)(1)). In a bifurcated proceeding, the trial court found true allegations that appellant had suffered a prior strike conviction (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)) and a prior domestic violence conviction (§ 273.5, subd. (f)(1)). The trial court sentenced him to eight years in state prison. Appellant raises claim of instructional and evidentiary error. He also contends the court erred in denying his Romero[2] motion and that his sentence amounts to cruel and unusual punishment. We affirm.

STATEMENT OF FACTS

On April 30, 2019, appellant was living in an apartment in Grover Beach with his girlfriend N.G., their six-year-old daughter A., and their infant child. That night, Grover Beach Police Officers Sonny Lopez and Felix Ramirez and Sergeant Sonny Gerber responded to a 911 call made by a neighbor after N.G. came outside and yelled, “Somebody call 911.” When Officers Lopez and Ramirez approached the apartment, they heard appellant and N.G. talking inside.

Officer Ramirez knocked on the door and appellant opened it. Officer Lopez told appellant about the 911 call and said “we gotta make sure everybody’s okay inside the residence.”[3] Appellant responded, “Everything’s fine.” Officer Lopez replied, “I have to come inside. Make sure all the parties are—okay.” N.G. initially said “[d]on’t . . . come inside” then repeatedly yelled, “Come inside now.” N.G.’s behavior led Officer Lopez to conclude that the situation “was more of an emergency than it was just a request to come in.” Appellant interjected “[s]he’s tripping out” and “[s]he been drinking, dude.” As Officer Lopez entered the apartment, N.G. said “[h]e needs to go.”

Officer Ramirez took appellant, who had a small amount of blood on his mouth, out of the apartment and down the stairs to where Sergeant Gerber was located. N.G. had a lump on her forehead, bruises on her cheek and neck, a bloody nose, bloody and swollen lips, and bloodstains on her shirt. A. was standing next to N.G. and the infant was in a baby seat on the floor. Furniture in the room was overturned.

Officer Lopez asked N.G. “what’s going on” and she replied, “He’s abusive, and he needs to go.” When asked what happened to her nose, N.G. replied that appellant had “hurt” her by “put[ting] his hand on [her] face” and had “punched [her] right in the head.” N.G. added that “he’s crazy, and he’s gonna come in here.” A., who also had a lump on back of her head, interjected that appellant had “punched [her] right in the head” as well and had “hurt it.”

In the meantime, Sergeant Gerber asked appellant what was wrong with his mouth and if he needed medical attention. Appellant replied “[n]othing’s wrong with my mouth” and added, “I’m fine.” When appellant heard he was to be detained, he resisted and fled the scene.

At trial, A. testified that appellant had hit her on the back of the head with an open hand and that he “hurt” N.G. by “putting his hand on her.” The jury was also informed that appellant had a prior conviction for committing domestic violence against N.G. in 2014.

DISCUSSION

Failure To Instruct On Self-Defense

Appellant contends the trial court erred by refusing to instruct the jury on self-defense to the charge of inflicting corporal injury on a fellow parent. We conclude otherwise.

The trial court must give an instruction on self-defense on request when there is substantial evidence to support it. (People v. Stitely (2005) 35 Cal.4th 514, 551.) To justify an act of self-defense in this context, “‘“the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him.”’ [Citation.] In other words, the defendant’s belief must both subjectively exist and be objectively reasonable. [Citation.] Additionally, ‘[t]he threat of bodily injury must be imminent’ and the force used in response ‘“reasonable under the circumstances.”’ [Citation.]” (People v. Brady (2018) 22 Cal.App.5th 1008, 1014, italics omitted.)[4]

In deciding whether substantial evidence supports a self-defense instruction, the court does not decide the credibility of the defense’s evidence, but only whether such evidence, if believed by the jury, was sufficient to raise a reasonable doubt about the defendant’s guilt. (People v. Salas (2006) 37 Cal.4th 967, 982.) It is well-settled, however, that “speculation is not substantial evidence warranting a self-defense instruction.” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 648.) We review the court’s refusal to give the instruction de novo. (People v. Simon (2016) 1 Cal.5th 98, 133.)

In discussing jury instructions during the prosecution’s case-in-chief, the prosecutor asked the court to strike any reference to self-defense in the instructions on inflicting corporal injury against a fellow parent (CALCRIM No. 840), simple battery against a fellow parent (CALCRIM No. 841), simple battery (CALCRIM No. 960), and simple assault (CALCRIM No. 915). The prosecutor argued that “there simply has not been any evidence of self-defense in this case” and asserted that the injury on appellant’s mouth was insufficient to support the defense because “[t]here’s not been a single scintilla of evidence to show how he got that.” Defense counsel countered that appellant was entitled to instructions on self-defense because “[t]he evidence is [N.G.] was drinking, she was acting erratically. As [appellant] said, tripping out. And there is a significant injury to his mouth at that time giving rise to the inference that he received that from her. Her statement is that he put his hand on her face, giving rise to the inference that he was doing that to keep her away, not that he was hitting her.”

After reviewing CALCRIM No. 3470, the court stated “I don’t think I’m in a position to rule on [the issue] until I know whether [appellant] will take the stand and what he says.” After appellant chose not to testify, the court concluded “there’s not substantial evidence of self-defense” because “[t]here’s been no evidence presented that [appellant] reasonably believed . . . that he or someone else was in imminent danger of suffering bodily injury or being touched unlawfully” or “that he believed immediate use of force was necessary to defend against that danger.” The court accordingly declined to give CALCRIM No. 3470 and struck the self-defense language from CALCRIM Nos. 840, 841, 960, and 915.

The court did not err. Appellant did not testify, and there was no other evidence that he acted in self-defense when he inflicted corporal injury on N.G. Although his lip was bleeding when the officers arrived and he said N.G. was drunk and “tripping out,” this evidence at most supports a speculative possibility that appellant acted in self-defense. Such a possibility was not enough to warrant instructions on self-defense. (People v. Beck and Cruz, supra, 8 Cal.5th at p. 648.) Moreover, given the extensive nature of N.G.’s injuries in relation to his own, no reasonable juror would have found that appellant acted in lawful self-defense. (See People v. Minifie (1996) 13 Cal.4th 1055, 1065 [recognizing that “‘any right of self-defense is limited to the use of such force as is reasonable under the circumstances’”].) It is thus also clear that any error in refusing to instruct the jury on self-defense was harmless regardless of the standard of review.

Admission of N.G.’s Recorded Statements

Appellant contends the court violated his confrontation rights by admitting N.G.’s recorded statements to Officer Lopez because those statements were testimonial and appellant had no opportunity to cross-examine her. We disagree.

Under the Sixth Amendment to the federal Constitution, criminal defendants have the right to confront witnesses against them. (Crawford v. Washington (2004) 541 U.S. 36, 42, [158 L.Ed.2d 177] (Crawford); People v. Nelson (2010) 190 Cal.App.4th 1453, 1463.) The admission of a “testimonial” hearsay statement by a declarant who does not appear for cross-examination at trial violates the confrontation clause unless the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the witness. (Ibid.)

The confrontation clause does not, however, bar admission of hearsay statements that are not testimonial. (Davis v. Washington (2006) 547 U.S. 813, 823-826, 165 L.Ed.2d 224 (Davis).) “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 p. 822.)

Our Supreme Court has “identified six factors to consider in determining whether statements made in the course of police questioning were for the ‘“primary purpose of creating an out-of-court substitute for trial testimony” that implicates the confrontation clause.’ [Citation.] These are (1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant’s medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained. [Citation.]” (People v. Chism (2014) 58 Cal.4th 1266, 1289.)

Here, officers responded to a 911 call regarding a suspected incident of domestic violence and N.G.’s statements were admitted as spontaneous statements under Evidence Code section 1240.[5] The exigencies of such incidents “may often mean that ‘initial inquiries’ produce nontestimonial statements.” (Davis, supra, 547 U.S. at p. 832, italics omitted.) “Preliminary questions asked at the scene of a crime . . . do not rise to the level of an ‘interrogation.’ Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police ‘interrogation’ as that term is used in Crawford.” (People v. Corella (2004) 122 Cal.App.4th 461, 469.)

The totality of the circumstances surrounding N.G.’s statements, when viewed objectively, support the trial court’s conclusion that the statements were nontestimonial. (See, e.g., People v. Brenn (2007) 152 Cal.App.4th 166, 178 [statements made to officer who arrived in response to 911 call were nontestimonial where officer briefly asked “a few general questions” before paramedics arrived].) Appellant had assaulted N.G. shortly before the officers arrived. (See People v. Johnson (2010) 189 Cal.App.4th 1216, 1225, italics omitted [recognizing that “Davis supports a conclusion that statements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency”].)

Moreover, N.G. had extensive physical injuries and was emotionally distraught and the Officer Lopez’s brief, informal questions were directed at those issues. (See People v. Cooper (2007) 148 Cal.App.4th 731, 743 [statements were nontestimonial where “[t]he circumstances of the interview objectively indicate that its primary purpose was to assess [the victim’s] mental and physical condition and deal with her potentially critical need for assistance and protection”].) “[N.G.’s] spontaneous statements describing what had just happened did not become part of a police interrogation merely because Officer [Lopez] was an officer and obtained information from [her]. . . . Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police ‘interrogation’ as that term is used in Crawford.” (People v. Corella, supra, 122 Cal.App.4th at p. 469.) Although appellant had been removed from the premises, N.G. stated that appellant was “crazy” and feared he was going to return to the residence and harm her. (See People v. Roberts (2021) 65 Cal.App.5th 469, 478, quoting Michigan v. Bryant (2011) 562 U.S. 344, 370 [179 L.Ed.2d 93], [recognizing that “‘[t]he existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial’”].) The trial court thus did not err in concluding that N.G.’s statements to Officer Lopez were nontestimonial and were thus admissible as spontaneous statements.

Romero Motion

Appellant asserts that the court erred in denying his motion to strike his prior strike conviction under section 1385 in the interest of justice pursuant to Romero. We disagree.

In deciding whether to grant a Romero motion, the trial court must “‘consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)

We review rulings on a Romero motion for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 376.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. . . .”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)

Appellant fails to meet his burden of showing that the court’s denial of his Romero motion was an abuse of discretion. The record reflects that the court fully considered all relevant factors in finding that appellant did not fall outside the spirit of the three strikes law. Moreover, there is nothing to indicate the court misunderstood the scope of its discretion or considered impermissible factors in adjudicating the motion. Accordingly, this case does not present the “‘limited circumstances’” in which the denial of a Romero motion amounts to an abuse of discretion. (People v. Leavel (2012) 203 Cal.App.4th 823, 837.)

In arguing otherwise, appellant essentially asks us to reweigh the relevant factors and reach a different conclusion than the one reached by the trial court. Contrary to his claim, the record does not affirmatively demonstrate that the court misunderstood the scope of its discretion in adjudicating the motion. Absent such evidence we must presume the court understood the scope of its authority, considered all relevant factors, and properly applied the law. (People v. Fuhrman (1997) 16 Cal.4th 930, 944; People v. Brugman (2021) 62 Cal.App.5th 608, 638.) In highlighting the court’s comment that an eight-year sentence “may not fit for what you were convicted of,” appellant overlooks the court’s subsequent remarks regarding appellant’s recidivism and his inability to remain crime-free since the juvenile adjudication that resulted in his prior strike. Based on the record before us, appellant has not shown that the trial court’s denial of his Romero motion was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) His claim that the court erred in denying the motion accordingly fails.

Cruel And Unusual Punishment

For the first time on appeal, appellant claims his eight-year prison sentence constitutes cruel and unusual punishment in violation of the state and federal constitutions. Because the claim was not raised below, it is forfeited. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247 [“A claim a sentence is cruel and unusual is forfeited on appeal if it is not raised in the trial court, because the issue . . . requires a fact-bound inquiry”].)

In any event, the claim lacks merit. Successful challenges that a sentence amounts to cruel and unusual punishment are “extremely rare.” (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) “The defendant must show the sentence is ‘“out of all proportion to the offense”’ and that it offends ‘fundamental notions of human dignity.’ [Citation.]” (Ibid.)

Appellant has not met this standard. He highlights the fact that he was 16 years old when he committed his prior strike offense. Appellant, however, was not sentenced as juvenile offender, but rather as an adult recidivist. He was “punished not just for [his] current offense but for [his] recidivism. Recidivism . . . poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.) His claim that his sentence amounts to cruel and unusual punishment thus fails.

A.’s Competency To Testify

Appellant also claims the court erred in finding A. was competent to testify. We conclude otherwise.

“In general, ‘every person, irrespective of age, is qualified to be a witness.’ [Citations.] ‘A person is disqualified to be a witness,’ however, ‘if he or she is . . . ncapable of understanding the duty of a witness to tell the truth.’ (Evid. Code, § 701, subd. (a)(2).) The issue of competency is distinct from the issue of credibility, and ‘contradictory [or inconsistent] testimony does not suffice to show incapacity to understand the duty of truth[.]’ [Citations.] The party challenging a witness’s competency has the burden to prove incompetency by a preponderance of the evidence. [Citation.] ‘We . . . uphold a trial court’s ruling on the competence of a witness in the absence of a clear abuse of discretion.’ [Citation.]” ([i]People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 959.)

Prior to A.’s testimony, the court held an Evidence Code section 402 hearing to determine whether she was competent to testify. The court asked A., “Do you promise to tell the truth, the whole truth?” A. answered, “Yes.” After A. testified that she was six years old and in the first grade, the prosecutor asked her, “Do you know what a lie is?” A. responded by shaking her head in the negative. The prosecutor then asked her “if I were to tell you that my pants were red, would that be right?” A. replied, “No.” When asked “f I were to tell you my tie was yellow,” A. replied “[n]o” and said it was green. The prosecutor then asked her “what happens when somebody does something bad” and she replied, “You have to go to prison.” A. responded “I don’t know” when asked “[w]hat happens if somebody doesn’t tell the truth.” The prosecutor also asked “if your teacher asks you do to something and you did it, would that be good or bad?” A. replied “[b]ad,” but went on to state that students received prizes “[w]hen you are being really good.”

The trial court did not abuse its discretion. The contradictions or inconsistencies in A.’s testimony were insufficient to demonstrate she lacked the capacity to tell the truth. ([i]People v. Giron-Chamul, supra, 245 Cal.App.5th at p. 959.) A.’s responses to the prosecutor’s questions regarding the colors of his clothing demonstrated that she understood when someone was being truthful or telling a lie.

A.’s trial testimony merely reiterated her videotaped statement that appellant had hit her, the latter of which was admitted at trial without objection. Accordingly, any error in allowing A. to testify at trial was harmless. (See People v. Roberts (2017) 13 Cal.App.5th 565, 576 [recognizing that the erroneous admission of evidence is ordinarily reviewed for prejudice under the standard set forth in People v. Watson (1956) 46 Cal.2d 818; see also In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1022 [evidence admitted as a spontaneous statement under Evid. Code, § 1240 does not require competency of hearsay declarant].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J. YEGAN, J.

Hernaldo J. Baltodano, Judge

Superior Court County of San Luis Obispo

______________________________

Adrian Dresel-Velasquez, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

[1] All statutory references are to the Penal Code unless otherwise noted.

[2] People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

[3] Recordings from Officer Lopez’s body camera were admitted at trial. At both the preliminary hearing and the trial, N.G. invoked her Fifth Amendment rights and refused to testify. She still refused to testify after being granted immunity and was held in contempt of court. Her recorded statements were admitted at trial as spontaneous statements under Evidence Code section 1240 after the court found that N.G. was unavailable to testify and that her statements were both spontaneous and nontestimonial.

[4] CALCRIM No. 3470, the standard instruction on self-defense, provides in pertinent part: “The defendant acted in lawful [self-defense] if: [¶] 1. The defendant reasonably believed that [he] was in imminent danger of suffering bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against the danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger.”

[5] Evidence Code section 1240 makes a hearsay statement admissible if it describes an event perceived by the declarant, and “[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.”