P. v. Hin

Filed 2/21/07  P. v. Hin CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

            Hoeuth Hin appeals convictions for cohabitant abuse, child endangerment, and resisting a police officer.  He contends his Sixth Amendment right to be confronted with the witnesses against him was violated when hearsay testimony was admitted into evidence, and that the court improperly instructed the jury on each of the charges.  We reduce his cohabitant abuse conviction to cohabitant battery, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

            Shortly after midnight on June 16, 2005, Santa Rosa Police Officers Matthew Tomlin and Jerry Ellsworth were dispatched to a gas station where they met the victim.  She was shaking and sobbing, and had blood on her tank top and pajama pants.  The victim told police that she lived nearby with defendant and their one-year-old son.  Defendant and several friends were drinking beer at their apartment, and the victim and child were unable to sleep.  When she asked them to be quiet, defendant threw something at her that hit the wall.  He also grabbed and yanked her hair from side to side.

            The victim dressed herself and her son and tried to leave, but her car was blocked by other vehicles.  She asked defendant's friends to move their cars, and went back outside to wait for them.  Defendant went out to the porch and threw a beer bottle at the victim that broke when it hit her leg.  Officer Tomlin saw a tear in the victim's pants and a cut on her right thigh.  While the victim held their son, defendant grabbed her by the hair and punched her several times.  One of the punches missed the victim and hit the little boy, whose nose began to bleed.  Defendant yanked the child out of the victim's arms.  Defendant's friends told him to stop and dragged him back inside.  When she spoke to the officers, the victim was concerned that the child's nose was still bleeding and he was in need of medical care.

            When the officers went to defendant's home, he was standing in the living room, holding his son and yelling.  As they approached the house, Officer Tomlin heard defendant yelling, â€