Opinion
A148996
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. SEAN BEARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. 225402)
Sean Beard was convicted of several acts of domestic violence. The victim did not testify at trial. Instead, her statements to police officers and treating medical personnel were introduced. The jury also heard out-of-court statements of two prior victims of domestic violence by Beard. Beard argues three statements were improperly admitted as spontaneous declarations under Evidence Code section 1240, and two were testimonial in violation of the confrontation clause. He further argues the court erred in admitting certain statements in recorded jail calls he made to the current victim, the prosecutor misstated the law in closing argument, and the trial court impermissibly restricted defense counsel's discussion of reasonable doubt in closing argument. We affirm.
I. BACKGROUND
Beard was charged by information with several domestic violence offenses involving S.D. Four crimes were alleged to have been committed on December 25, 2015: felony inflicting corporal injury on a romantic partner, resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a); count 1); felony assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 2); felony criminal threats (§ 422; count 3); and misdemeanor abusing or endangering the health of a child in his care (§ 273a, subd. (b); count 4). Two crimes were alleged to have been committed on January 29, 2015: misdemeanor battery on a romantic partner (§ 243, subd. (e)(1); count 5), and felony assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 6). Two crimes were alleged to have been committed on November 29, 2014: felony inflicting corporal injury on a romantic partner (§ 273.5, subd. (a); count 7,) and felony assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 8). As to count 8, it was alleged that Beard committed a violent or serious felony while on felony probation within the meaning of section 1203, subdivision (k). A. Pretrial Proceedings
Undesignated statutory references are to the Penal Code.
The court dismissed great bodily injury allegations (§ 12022.7, subd. (e)) as to counts 7 and 8.
Before trial, the prosecutor sought admission of out-of-court statements describing the charged crimes, as well as prior acts of domestic violence admissible under Evidence Code section 1109. The court excluded S.D.'s statements describing a January 29, 2015 incident, and statements by a former partner of Beard, D.B., describing domestic violence incidents on February 17, 2009, October 23, 2010, and November 3, 2010. The court admitted hearsay reports of other incidents, which were presented to the jury at trial as set forth below. B. Trial
1. December 25, 2015 Incident Involving S.D.
On December 25, 2015, at about 11:36 p.m., S.D. called 911 to report her boyfriend, Beard, had "slammed [her] to the ground" and then left in her car (a black Dodge Avenger). She was in her apartment, Beard had "the keys," and Beard was unarmed. S.D. initially thought Beard took her infant daughter, but she located the child during the call. Officers arrived while S.D. was still on the phone.
San Francisco Police Officer Michael Beaird approached S.D.'s apartment and heard a woman hyperventilating and crying hysterically. Through an open doorway, he saw S.D. crying on a couch in the living room. She was bleeding from the area of her nose and had a bump on her forehead. Photographs of S.D.'s condition were presented to the jury. "[T]here was debris all over. . . . [T]he way everything was thrown about, we didn't even know the baby was there for a moment or two." When police questioned S.D., "she really couldn't get more than one word out. She was crying very hard. [¶] . . . [¶] . . . We weren't even able to get basic information from her . . . [such as] if there were any suspects left in the house, where the baby was, if there was anybody else injured . . . . [¶] . . . [¶] . . . It took some time before [S.D.] could calm down to the point of being able to give us details and answer our questions." The officers "cleared" the apartment, ensuring no suspects or additional victims were present, and summoned paramedics to assess and treat S.D. She declined further medical care or use of a domestic violence shelter.
Once S.D. was able to describe the incident, she told police Beard became agitated after a family gathering due to a conflict with relatives. After he dropped off S.D. and her child, S.D. asked him to return because she had the wrong key. He was angry when he returned and entered the apartment. S.D. took her baby and sat in her car because she was afraid Beard was going to physically attack her. After about five minutes, Beard went to the driver's seat window and told her, "Come in or I'll punch your eye shut." S.D. climbed over the center console, opened the front passenger door, and attempted to exit with her baby, who was in a car seat in the front passenger seat. Beard came around the car. Scared, S.D. fled and dropped the car seat, which slid out of the car to the ground. Beard followed S.D., grabbed her from behind, and slammed her into the concrete ground, injuring her face. He then returned to the car, and S.D. called 911. S.D. told Officer Beaird she had two other reported domestic violence incidents with Beard in the previous 14 months and one resulted in hospitalization.
Officer Beaird obtained surveillance video from the housing complex, which was consistent with S.D.'s description of the incident. The recording was played for the jury. Officer Beaird next went to the police station to obtain an emergency protective order for S.D. and her child. When he returned with the order at about 2:00 or 2:30 a.m., he noticed an unoccupied Dodge Avenger parked outside S.D.'s apartment. As he approached the apartment, Officer Beaird noticed S.D. peeking from a nearby doorway as if she were hiding. She told him Beard had returned, so he called for backup. Beard was ordered to the front door, where he was arrested and served with the protective order.
On December 26, 2015, Beard called S.D. from jail several times. Recordings of several calls were played for the jury. On each call, when the automated calling system in the jail asked Beard to state his name for the call recipient, he said, "Pick up the phone, bitch." During the calls, he repeatedly castigated S.D. for calling the police and minimized his criminal conduct. When S.D. said Beard "fuckin' slammed my face to the ground to where my head hits the ground, my face is bleeding," he said her complaints were "weak-ass, fake-ass shit." When S.D. claimed she was seriously hurt, he responded, "You ain't fuckin' hurt, my nigga. . . . You dyin' right now or somethin'?" S.D. mentioned her facial injuries and Beard responded, "Piece of shit-ass nick on your nose. That's the only thing, my nigger. That look like a fuckin' baby did that." When she said, "Everything fuckin' hurts right now," he responded, "Keep it to yourself. Tell somebody who care."
Beard made the following admissions during the calls: "I was sittin' right there talkin' to you. You . . . said 'I'm not gonna sit right here and—and take this.' And you fuckin' walked off. . . . [¶] . . . [¶] Why'd you walk off? . . . [M]aybe because I was talkin' too loud, brah? We was just havin' a conversation." When S.D. said, "It wasn't no normal conversation," Beard responded, "Wasn't no hands-on, brah." When S.D. said, "You could have just left me alone in the car," Beard responded, "[Y]ou could have just sat there on the fuckin' porch and had a—a civilized conversation like the grown woman you is instead of . . . making up all these lies . . . . [¶] . . . [¶] . . . You could have just fuckin' stayed your ass in the house, my nigger, just let me talk my shit and walk off. That's what I always do." When S.D. said, "I could have just been sittin' in the car and you could've just left me alone," Beard responded, "And you outside with my fuckin' newborn baby, bitch, yeah, yeah, right. . . . You the one fuckin' child endangerment. . . . Freezin' as hell outside." When discussing their arguments, Beard said, "[Y]ou made me like this, though. Take responsibility for your actions. You made me like this. [¶] . . . [¶] [W]hy do you make me do shit like that then? Like you know how I am." During the calls, he called S.D. "retarded," "dummy," and "stupid."
Beard also admitted prior incidents of domestic violence: "I could accept the other times, brah, when you called [the police]. . . . [¶] . . . [¶] . . . I ain't went through no shit like since I been, uh, fucking with [another woman], brah. Your ass has me in the same boat as that bitch, brah. . . . [¶] . . . [¶] . . . I fucked with a lot of females in my day and times and I did a lot of shit. And—how come it just y'all two?"
Beard used a name matching D.B.'s first name.
Finally, Beard made comments that could be construed as threats: "You win right now. But you know what? In the long run I always win." "I get out of here, brah, I'm telling you, brah—you got me real fucked up right now, my nigger." "If I was a asshole then, man, just wait till I get out. That ain't threatenin.' Just wait till I get out. I don't want you to call them and put another charge on me, brah." "[A]ct according as if I was on the street, blood. . . . It ain't like I got life, my nigger." "It's not like I got a fuckin' life sentence in here, brah. . . . I'm did this shit before, brah. Numerous of times, my nigger. And got out. . . . I don't understand bitches these days, blood. Bitches really call the police on a motherfucker. Thinkin' that's gonna solve the problem. Blood, you just made shit 20 times worse, dude." "I ain't got a five-year sentence—I ain't got a three—I ain't even got a year sentence, you fuckin' dummy. . . . [A] nigger's gonna be right back in the street."
2. January 29, 2015 Incident Involving S.D.
On January 29, 2015 at 11:48 p.m., S.D. called 911 to report her boyfriend "Sean" was being aggressive and she wanted him to leave her home. A recording of the call was played for the jury. At about 11:51 p.m., San Francisco Police Officer Shyrle Hawes responded to S.D.'s apartment. S.D. "was crying, she was nervous, very hesitant, reluctant, fearful." Photographs of S.D.'s condition were shown to the jury. Hawes obtained a one-week emergency protective order and served it on S.D. Beard was not arrested that day because Hawes lacked sufficient information for an arrest.
During trial, the court granted Beard's motion to dismiss the January 29, 2015 counts (counts 5, 6) for insufficient evidence. However, the evidence was still relevant as a prior act of domestic violence admitted under Evidence Code section 1109.
3. November 29, 2014 Incident Involving S.D.
In the afternoon of November 29, 2014, nurse practitioner Jessica Aldaz treated S.D. at San Francisco General Hospital. S.D. complained of a headache and persistent vomiting. She had several scratches on her right forehead, bruising and swelling around her right eye, scratches and abrasions on her neck, and bruising behind her left ear. "Bruising behind the ear is . . . called [a] battle sign. [It] can either be caused by something externally causing force or it can . . . show signs of a deeper injury below the skull . . . ." A CT scan showed a subdural hematoma, a collection of blood between S.D.'s skin and skull, but no fracture. Photographs of S.D.'s appearance that day were shown to the jury.
S.D. had a very flat affect, "[l]acking emotion, just very straight faced, not smiling, not making eye contact," which concerned Aldaz about S.D.'s mental well-being. S.D. reported her significant other, whom she would not identify, had dragged her out of a car onto the ground and kicked and punched her several times in the head and face. She lost consciousness during the assault and next recalled waking up in her apartment at 5:00 a.m. When she awoke, she felt very nauseous and had a headache. She went back to sleep, and woke up again at 8:00 a.m., then "proceeded to vomit about four times." Her nausea and headache continued, so she went to the hospital. Aldaz testified that S.D.'s injuries were consistent with S.D.'s account of the incident. S.D. said she lived with the significant other and her children, but he did not have a key to the home so she felt safe there.
As evidence that S.D.'s then-boyfriend was Beard, San Francisco Police Officer Michael Mayo testified that on January 21, 2014, after he had cited Beard for driving without a valid license, S.D. came to the scene to take possession of the vehicle.
As mandated by state law, Aldaz conveyed S.D.'s report of domestic violence to police. San Francisco Police Officer John Cvetovac interviewed S.D. at the hospital. S.D. said her ex-boyfriend had grabbed her, causing her to fall and hit her head on the sidewalk. She did not remember what happened thereafter, but friends told her what happened. She did not provide the friends' names. S.D. said she did not then live with the ex-boyfriend and did not know where he lived, but said she ended her relationship with him that night, on November 29, 2014. She said the ex-boyfriend had committed prior unreported incidents of domestic violence against her.
On December 2, 2014, San Francisco Police Sergeant Esther Gonzalez went to S.D.'s apartment to conduct a follow-up investigation. When S.D. opened the door, she was holding an ice pack to her face. She had a scratch on her forehead, marks on her neck, and her eye was purple and blue and practically swollen shut. Photographs of S.D.'s condition were shown to the jury. S.D. acted very upset and fearful and at times was on the verge of tears.
4. July 26, 2013 Incident Involving C.A.
San Francisco Police Officer Jim Trail was familiar with C.A. from his work as a housing officer in the Sunnydale housing project, and he knew her as having a relationship with Beard at that time. On July 26, 2013, at about 4:40 p.m., Trail and San Francisco Police Officer Mike Peregoy responded to a high-priority call for service regarding a burglary in progress. Trail went to the rear of the home and noticed the back door and door frame were cracked as if the door had been kicked in. Peregoy went to the front of the home and heard a woman scream three times from the second floor, then heard a man on the first floor say, "The cops are here." After Peregoy cleared the first floor, he went upstairs and saw only two people, Beard and C.A. C.A. had a "scratch to her left eye" and swelling and redness on the right side of her face. Trail also went upstairs, saw a bedroom door kicked or forced in, and saw Beard standing and C.A. sitting on a bed or mattress with fresh blood and the injuries described by Peregoy. Trail suspected domestic violence, but C.A. would not provide information. Trail nevertheless obtained an emergency protective order that required Beard to stay away from C.A.
5. November 19, 2011 Incident Involving D.B.
On November 19, 2011, San Francisco Police Officer Ana Lee was working in the Ingleside police station when D.B. came in to report an incident. She was upset, teary-eyed, and physically shaky. The right side of her face was bruised and swollen, and she complained of pain in her right cheek. D.B. reported that Beard, her ex-boyfriend, punched her in the face and put a gun to her head in the following circumstances. At about 1:15 a.m., she picked up her children after a night out. As she got into the driver's seat of her car, Beard came from behind a building and punched the right side of her face, causing her to fall against the car. After she pulled herself up, he pointed a black revolver at the right side of her head and said, "Bitch, you disrespected me. I'm going to kill you." D.B. waited until morning to report the incident because she did not want to involve other people present who might suffer retaliation. Lee obtained an emergency protective order requiring Beard to stay away from D.B. In May 2010, D.B. was found in possession of crack cocaine.
6. March 30, 2010 Incident Involving D.B.
On March 30, 2010, at 12:34 a.m., D.B. called 911 to report that Beard, "my child's father[,] already have a warrant out for domestic violence against me. He had pulled a gun on me a couple of days ago. I already been working with the inspector, and they . . . told me if he called me or harassed me to call 911, and he's calling me and texting my phone now saying that he's in the back of my house and he's going to kick my door in and everything. So I need the police to come . . . ." San Francisco Police Officer Leon Ferronato responded to D.B.'s home promptly after receiving a 12:45 a.m. dispatch. When D.B. came outside to speak to him, she was "upset, fearful, definitely looking around a lot," and she had propped a chair against the door to reinforce it. She told the officer that Beard had been outside her door, sending threatening texts, and threatening to kick in her door while her children were at home. In the texts, Beard threatened to shoot D.B. because she had previously called the police. While talking to Ferronato, D.B. received a text she said was from Beard saying he was still in the area and knew the police were present. Ferronato, who was already familiar with Beard, notified other officers to look for him. D.B. then received a phone call that Beard was in the area in his father's car. D.B. identified the car leaving a nearby parking lot, and officers pulled it over. Beard, who was hiding under clothes in the rear of the vehicle, was arrested. D.B. received a text from Beard saying, "nd u said u p thm on my dad car bitch u fosho dead hoe believe it," which meant Beard was going to kill D.B. because she reported him to the police. Ferronato obtained an emergency protective order for D.B. and her children. C. Verdict and Sentence
As to the December 25, 2015 incident, the jury found Beard guilty of counts 1 and 3, not guilty of counts 2 and 4, but guilty of count 2's lesser offense of simple assault. As to the November 29, 2014 incident, the jury found him guilty of counts 7 and 8. The court found a prior conviction allegation true with respect to the section 1203, subdivision (k) allegation.
The court sentenced Beard to a total state prison term of five years eight months, comprised of the upper term of four years on count 1, an eight-month consecutive term for count 3, and a one-year consecutive term for count 7. One-year terms for count 8 and the lesser included assault offense on count 2 were stayed pursuant to section 654. The court also imposed a three-year criminal protective order.
II. DISCUSSION
A. Admission of Hearsay
Beard argues three victim reports of charged and uncharged acts of domestic violence were inadmissible hearsay, and two of those reports violated his constitutional rights to confront the witnesses against him.
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] . . . [¶] . . . Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subds. (a), (b).) The challenged statements were made outside of court and admitted for their truth. When faced with combined evidentiary and constitutional challenges to the admission of hearsay in criminal cases, "[w]e first consider whether they fell under a California hearsay exception and then whether their admission violated the Sixth Amendment of the United States Constitution as it has been applied in Crawford and its progeny." (People v. Blacksher (2011) 52 Cal.4th 769, 810; see ibid., fn. 26.)
Crawford v. Washington (2004) 541 U.S. 36.
1. S.D.'s December 25, 2015 Statement to Officer Beaird
Beard first argues that S.D.'s December 25, 2015 statement to Officer Beaird did not fall within an exception to the hearsay rule and was testimonial under the rule of Crawford.
a. Spontaneous Statement Hearsay Exception
"Evidence Code section 1240 provides: 'Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) was made spontaneously while the declarant was under the stress of excitement caused by such perception.' [¶] . . . [¶] 'To render [a statement] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.]
" 'The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is "that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief." ' [Citation.] [¶] . . . [¶]
"When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] But . . . '[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' " (People v. Poggi (1988) 45 Cal.3d 306, 318-319 (Poggi).)
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court 'necessarily [exercises] some element of discretion . . . .' [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]. Indeed, Dean Wigmore goes so far as to urge that the issue should be left 'absolutely to the determination of the trial court.' " (Poggi, supra, 45 Cal.3d at pp. 318-319.)
The trial court did not abuse its discretion in admitting S.D.'s December 25, 2015 statement to Officer Beaird pursuant to Evidence Code section 1240. Beard does not dispute that S.D. experienced and described a stressful event, but claims she had calmed down and had time to reflect by the time she described what occurred to the officer. Ample evidence supported the court's finding that S.D. remained under the stress of the event, inhibiting reflection or fabrication. Officer Beaird testified S.D. was hyperventilating and crying hysterically when he arrived such that it was difficult to obtain information from her. This emotional distress was accompanied by physical distress, as shown by her injuries and video evidence that Beard had slammed her head against concrete. Moreover, an inference that stress from the incident was acute, prolonged, and had not abated is supported by evidence that approximately two hours later S.D. was found hiding in a neighbor's doorway until Beard was apprehended in her apartment shortly thereafter. (See People v. Rincon (2005) 129 Cal.App.4th 738, 752-754 [declarant's distress can be inferred from totality of circumstances].)
Courts frequently have affirmed admission of an injured victim's statements in the immediate aftermath of an assault, even when the victim was not seriously injured. (See, e.g., People v. Merriman (2014) 60 Cal.4th 1, 64-67; People v. Corella (2004) 122 Cal.App.4th 461, 465-466), or where some time had lapsed after the assault (see, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1162-1164 [victim still " 'shak[en] by the ordeal" two hours after first speaking with police], overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 391 & fn. 3; People v. Stanphill (2009) 170 Cal.App.4th 61, 69, 75 [statements 30 minutes after assault]; cf. People v. Ledesma (2006) 39 Cal.4th 641, 708 [statement 15 minutes after robbery; victim nervous with no reported injury].)
Notwithstanding Beard's arguments to the contrary, "the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. [Citations.] To conclude otherwise would render the exception virtually nugatory: practically the only 'statements' able to qualify would be sounds devoid of meaning." (Poggi, supra, 45 Cal.3d at p. 319.) While S.D. had calmed down enough to form more than one-word utterances, the court reasonably found she remained under the stress of the event: Officer Beaird testified at the Evidence Code section 402 hearing that S.D. was "crying and upset" while treated by paramedics and still nervous and tearfully crying when speaking to him.
Beard also argues S.D.'s references to prior acts of domestic violence by him were not admissible because they did not "[p]urport[] to narrate, describe, or explain" the event that caused her stress at the time she spoke to Officer Beaird (see Evid. Code, § 1240, subd. (a)), i.e., Beard's December 25, 2015 attack. Statements providing some background to an exciting event may be admissible to help "explain" the event. (See People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1372 [reason victim was at crime scene], review granted July 13, 2016, S234377; People v. Corella, supra, 122 Cal.App.4th at p. 466 [victim hid defendant's car keys because he was intoxicated, which angered him].) However, even if S.D.'s comments about prior acts of domestic violence were not properly admitted under Evidence Code section 1240, the error was harmless as we conclude post that other evidence of those prior domestic violence incidents was properly admitted.
b. Testimonial Hearsay
"In Crawford . . . , the United States Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence—i.e., an out-of-court statement offered for its truth—against a criminal defendant. Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a ' "witness[]" ' ' "bear[ing] testimony" ' [citation] if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused." (People v. Cage (2007) 40 Cal.4th 965, 969 (Cage).)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme Court held that " '[s]tatements 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.' " (Cage, supra, 40 Cal.4th at p. 982, fn. omitted.)
Davis involved two consolidated domestic violence criminal cases in which a recorded 911 call by one victim (McCottry) was nontestimonial while the statement of another victim (Hammon) to a police officer was testimonial. (Cage, supra, 40 Cal.4th at pp. 980-983). As summarized by the California Supreme Court, Davis "identified four factors that indicated McCottry was not testifying during the 911 call, as follows: First, a 911 call, and at least the initial questioning by the operator, are not primarily designed to prove some past fact, but to elicit current circumstances requiring police assistance. Second, though one might call 911 to relate a danger already past, McCottry clearly was seeking help against a bona fide, ongoing physical threat. Third, the conversation between McCottry and the 911 operator, viewed objectively, was focused on facilitating resolution of the current emergency, rather than establishing what had happened in the past. Finally, the level of formality between McCottry's 911 interview and the testimonial police station interrogation in Crawford was striking. 'Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.' [Citation.]
"It was much easier, the [Davis] court said, to resolve the testimonial nature of the police interview with . . . Hammon. [Her] statements to the questioning officer . . . 'were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation [of Hammon] was part of an investigation into possible criminal past conduct—as, indeed, the testifying officer expressly acknowledged.' [Citation.] When the officer arrived, he saw no evidence of an altercation still in progress. [Hammon] told him everything was fine, and that she faced no immediate threat. When he interviewed her a second time, in the living room, 'he was not seeking to determine (as in [McCottry's case]) "what is happening," but rather "what happened." Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime . . . .' [Citation.] [¶] Though the Crawford interview was more formal, the [Davis] court conceded, none of the features that made it so (station house setting, Miranda warning, audio recording) was essential to its testimonial nature. In . . . Hammon's case, '[i]t was formal enough that [the victim's] interrogation was conducted in a separate room, away from her husband . . . , with the officer receiving her replies for use in his "investigation." . . . Both declarants were actively separated from the defendant . . . . Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.' " (Cage, supra, 40 Cal.4th at pp. 982-983, italics & fn. omitted.)
Under Davis, "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Cage, supra, 40 Cal.4th at p. 984.)
Applying these principles, we have no difficulty affirming the trial court's ruling that S.D.'s statement to police about the December 25, 2015 incident was nontestimonial. When Officer Beaird first arrived at the apartment, S.D. was crying hysterically and apparently fearful of Beard's ongoing actions and possible return. It can be readily inferred, therefore, that S.D.'s primary purpose in speaking to the officer was to ensure her and her daughter's immediate safety. Officer Beaird testified that his purpose upon first arriving at the scene was to determine whether a crime had occurred, how many suspects and victims were involved, where the suspects and victims were located, whether there were any injuries, and whether the infant was safe. His actions were consistent with this professed purpose: he located the baby, verified no suspects or additional victims were in the apartment, and ensured S.D. obtained medical care. He gathered information about the nature of the threat posed by Beard, which he used in part to obtain an emergency protective order to help ensure S.D.'s and her daughter's immediate safety. The court reasonably found both S.D.'s and Officer Beaird's primary purpose in the interview was to deal with an ongoing emergency.
Other evidence established that Beard had left in S.D.'s car, but in fact later returned and reentered her apartment, leading S.D. to cower in fear in a neighboring doorway until Officer Beaird happened to return with the protective order.
Beard argues the emergency ended by the time Officer Beaird took S.D.'s statement, as police knew Beard had departed and S.D. had declined further medical care. In Davis, the United States Supreme Court postulated, but did not decide, that McCottry's nontestimonial 911 call became testimonial once she reported the defendant had left the premises; thereafter, the operator "proceeded to pose a battery of questions" about the attacker and incident background which might have elicited testimonial statements. (Davis, supra, 547 U.S. at pp. 828-829.) The circumstances of this case support an inference that the statement was nontestimonial. Officer Beaird testified that S.D. initially had trouble providing more than one-word answers. While S.D. might previously have blurted out that Beard had left and even though police had cleared her apartment, Beard's whereabouts and possible return were unknown. A reasonable officer would seek a more coherent and complete account of the incident before concluding the emergency had abated. Beard notes that, although he had not yet been apprehended, the officer left S.D. and her children alone after taking her statement to obtain surveillance footage and an emergency protective order. However, the relevant question is whether the officer took S.D.'s statement to deal with an apparent emergency, not whether he concluded after taking the statement that the emergency had at least temporarily abated.
We further observe that the facts regarding the Hammon statement in Davis are clearly distinguishable from those presented here: the victim and defendant were both in the home, both denied any ongoing conflict; and, critically, police were present to prevent any further violence. They had also effectively detained the defendant in a separate room from the victim while she gave her statement. (Davis, supra, 547 U.S. at pp. 819-820 ["[defendant] made several attempts to participate in [the victim's] conversation with the police, . . . but was rebuffed" when an officer insisted they stay separated].) Three other cases cited by Beard are distinguishable because they involve victim affidavits filed in court to obtain restraining orders, which fall squarely within Crawford's definition of a testimonial statement. (People v. Pantoja (2004) 122 Cal.App.4th 1, 9; Miller v. State (2011) 289 Ga. 854, 857 [717 S.E.2d 179, 184]; Crawford v. Commonwealth (2011) 281 Va. 84, 98 [704 S.E.2d 107, 116].)
Beard also argues that Officer Beaird's possible use of a domestic violence checklist while questioning S.D. rendered her statement testimonial. Such questioning, however, may be as consistent with resolving an ongoing emergency as it is with obtaining a statement for later use at trial. (Compare People v. Brenn (2007) 152 Cal.App.4th 166, 176-177 [responses to "rapid-fire questioning from [911] dispatcher" were nontestimonial] with Davis, supra, 547 U.S. at pp. 819-820, 829-830 [victim's response to officer questioning in separate room was testimonial].) Some of the domestic-violence-specific questions included asking a victim who has a head injury whether she lost consciousness, which is as consistent with assessing a present emergency as with gathering evidence for trial. On this record, the existence of the checklist does not undermine the trial court's ruling that S.D.'s statement to Officer Beaird was nontestimonial.
Because the trial court reasonably found that S.D.'s December 25, 2015 statement to Officer Beaird was spontaneous and nontestimonial, it did not err in admitting it into evidence.
2. S.D.'s November 29, 2014 Statement to Nurse Aldaz
Beard argues the trial court erred in admitting S.D.'s November 29, 2014 statement to Aldaz about an alleged assault the previous night because too much time had passed for the statement to still be "under the stress of excitement caused by [her] perception" of the incident. (See Evid. Code, § 1240, subd. (a).) While this statement presents a closer question than the December 2015 statement, we again conclude the trial court did not abuse its discretion in admitting it.
Beard concedes this statement was nontestimonial. (See Cage, supra, 40 Cal.4th at pp. 986-988 [statement to treating physician nontestimonial even though he was a mandatory reporter].)
" '[T]he amount of time that passes between a startling event and subsequent declaration is not dispositive, but will be scrutinized, along with other factors, to determine if the speaker's mental state remains excited.' " (People v. Clark (2011) 52 Cal.4th 856, 926.) Lapse of time alone does not deprive statements of spontaneity "if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance." (Poggi, supra, 45 Cal.3d at p. 319, italics omitted.)
Courts have affirmed admission of delayed reports of crimes where circumstances show the victim was still under the stress of the event, such as where the victim's trauma and injuries were severe enough to continue to inhibit reflection and fabrication. Even absent serious injuries, delayed statements have been held properly admitted where other circumstances suggested the declarant was still under the stress of the incident. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 540-541 [statement 2.5 hours after crime where witness was crying, shaking, and visibly upset]; People v. Trimble (1992) 5 Cal.App.4th 1225, 1233-1235 [statement by child about father's crime upon first contact with relatives two days after crime and said while "in a mental state of extreme agitation and excitement"].)
See, e.g., People v. Clark, supra, 52 Cal.4th at p. 926 (statement given several hours after incident where victim endured six hours of continual trauma, was unresponsive when discovered, and alternated between sleepiness and agitation in hospital); People v. Raley (1992) 2 Cal.4th 870, 893-894 (statement given several hours after incident where victim bled for 18 hours, suffered a traumatic head injury, and had periods of unconsciousness), superseded by statute on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1, 62-63 & fn. 8; People v. Jones (1984) 155 Cal.App.3d 653, 658-659, 662 (statement given 30 to 40 minutes after injury where victim had third degree burns over much of his body and soon died).
Here, S.D. reportedly had been dragged on the ground, was punched and kicked in the head and face, lost consciousness during the incident, and repeatedly vomited after she woke up the next day. She had scratches, bruising and facial swelling when she spoke to Aldaz and three days later her eye was purple and blue and practically swollen shut, as confirmed by photographs the trial court observed. Although S.D. was not crying or hyperventilating when she made this statement, Aldaz described her as having a very flat affect, "[l]acking emotion, just very straight faced, not smiling, not making eye contact," which led Aldaz to be concerned about S.D.'s mental well-being. This court has previously held that symptoms of psychological or physical shock supported an inference the declarant was under the stress of the relevant exciting event. (See People v. Jones, supra, 155 Cal.App.3d at pp. 658, 662 [burn victim walked into emergency room on his own, looked calm or dazed, and was not screaming in pain despite severe burns].) We cannot conclude on this record that the court abused its discretion in finding S.D. was still under the stress of the attack when she made her statement to Aldaz while seeking medical care for her injuries.
People v. Pearch (1991) 229 Cal.App.3d 1282, cited by Beard, is distinguishable. The victim in that case (Flores) left home with defendants under suspicious circumstances and later called his brother from a hotel asking for money and claiming he was being hurt. The call was disconnected, and Flores was shot in the hotel room about an hour later. The alleged perpetrators fled. (Id. at pp. 1286-1288.) The court held that admission of Flores's statement over the phone as a spontaneous declaration was error because "the [trial] court engaged in speculation as to: (1) what event Flores was describing; (2) when that event occurred; and (3) whether Flores was still under the effect of that event at the time of the phone call. Nothing in the record indicates Flores's statement was made at or shortly after he was hurt or that he was still under the influence of the harm inflicted. [Citations.] Nothing in the record suggests Flores did not have an opportunity to reflect in the interim between the time he was hurt and the time of the phone call. Nothing in the record shows that Flores was in an excited state so that he was unable to reflect or deliberate at the time of his phone call." (Id. at pp. 1290-1291.) Unlike the victim in Pearch, the cause of S.D.'s stress was detailed in her statement. No speculation was required. Additionally, S.D.'s injuries were documented by photographs, and her stressed behavior (shock on November 29; tearful, upset, and fearful on December 2) was personally observed by Aldaz and Sergeant Gonzalez. On these facts, the trial court reasonably found S.D. did not have the capacity to reflect or deliberate even if she had the "opportunity" to do so.
Beard argues there was insufficient evidence S.D. was relating her personal perceptions in the statement, rather than reports she received from other witnesses to the attack. (See People v. Jones, supra, 155 Cal.App.3d at p. 660 ["language of [Evid. Code] section 1240 indicates the declarant must have perceived the event to which his statement relates"].) He relies on S.D.'s statement to Officer Cvetovac, made after she had spoken to Aldaz, that she learned details of the assaults from her friends. The prosecutor reasonably argued in the trial court that S.D. had an incentive to minimize her account to Cvetovac (by claiming secondhand rather than firsthand knowledge) in order to avoid retaliation for reporting the incident to police, making Aldaz's account the more reliable version. The court allowed Beard to impeach with the inconsistent statement to Cvetovac. There was no abuse of discretion in admitting S.D.'s statement to Aldaz.
3. D.B.'s November 19, 2011 Statement to Officer Lee in Police Station
Beard argues the trial court erred in admitting D.B.'s November 19, 2011 statement to Lee in the police station. He argues the statement did not qualify as a spontaneous declaration and was testimonial. We affirm admission of the statement under Evidence Code section 1240. Assuming the statement was testimonial, we conclude its admission was harmless error.
Beard again argues this statement was made too long after the incident to qualify as a spontaneous declaration. However, Lee testified that D.B. was upset, teary-eyed and physically shaky when she reported the incident, and her face was bruised and swollen. As with S.D.'s statement to Aldaz, we conclude the trial court did not abuse its discretion in admitting the statement as a spontaneous declaration, given D.B.'s state of injury and evident stress due to the reported assault by Beard. People v. Saracoglu (2007) 152 Cal.App.4th 1584 similarly affirmed admission of a statement made by an injured victim who went to a police station to report a crime, which included the at-large perpetrator's threat to kill her if she went to the police, although in that case only about one-half hour had passed since the incident. (Id. at pp. 1587-1590.)
Whether this statement was nontestimonial, however, is a closer question. In People v. Saracoglu, the appellate court rejected a concession by the People on the issue and held the victim's plea for help at the police station was nontestimonial as "the functional equivalent of making a 911 call." (People v. Saracoglu, supra, 152 Cal.App.4th at pp. 1596-1597.) A federal district court disagreed, however, granting a petition for writ of habeas corpus on the ground that the state court unreasonably applied clearly established law on the issue. (See Saracoglu v. Walker (C.D.Cal., Mar. 23, 2010, CV 09-2195-VAP (DTB)) 2010 U.S.Dist. Lexis 27636, *1, adopting magistrate judge's report and recommendation in Saracoglu v. Walker (C.D.Cal., Jan. 10, 2010, CV 09-2195-VAP (DTB)) 2010 U.S.Dist. Lexis 27640, *9.) The federal court reasoned, in part, that the victim was "secure at the police station" when she made the statement, the focus of the interview was on past events not current circumstances, and an outstanding threat cannot render all later reports to the police an effort to resolve an ongoing emergency. (Id. at pp. *24-*27.)
Under the state court's approach in People v. Saracoglu, supra, 152 Cal.App.4th 1584, the trial court's ruling here would be well supported by the record. At the Evidence Code section 402 hearing, Lee testified that D.B. was physically shaking while making her statement, she said she did not feel she or her children were safe where they lived, and she showed Lee threatening texts Beard had sent her. Lee obtained an emergency protective order for D.B. and notified officers to arrest Beard if they saw him. The court also relied on the fact that the still-at-large Beard had reportedly used a gun during the incident, thus making him a public danger rather than a danger only to D.B., who was presumably safe while in the police station. (See Michigan v. Bryant (2011) 562 U.S. 344, 363-364 [in Davis, separating the Hammon spouses within house neutralized any threat because husband was armed only with fists not gun].)
We need not decide whether the statement was testimonial, however, because we conclude any error was harmless beyond a reasonable doubt. (See People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.) The statement was not direct evidence of any of the charged offenses. As Evidence Code section 1109 evidence of prior domestic violence incidents, it was merely cumulative to D.B.'s March 2010 statement—referencing Beard's pulling a gun on D.B. and multiple threats by Beard, which were corroborated on several points by the testimony of a police officer—and the strong circumstantial evidence that Beard committed a domestic violence offense against a third victim, C.A., in July 2013. In light of the photographic evidence of S.D.'s injuries in December 2015 and November 2014, the video evidence corroborating S.D.'s account of the December 2015 incident, Beard's admissions about the December 2015 incident and prior domestic violence incidents in the jail calls, and the variety of witnesses (police and medical personnel) who recounted S.D.'s and the other victims' reports of abuse in differing circumstances and time frames, we conclude admission of D.B.'s November 2011 statement, if error, was harmless. B. Admission of Inflammatory Material in Jail Call Recordings
Beard argues the trial court erred in denying his motion to exclude the initial comment, "Pick up the phone, bitch," on each jail call played for the jury. The court did not abuse its discretion in admitting these statements.
"A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Beard first argues the comments were not relevant to any material issue in the trial. "Only relevant evidence is admissible. (Evid. Code, § 350; [citation].) Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive. [Citations.] The trial court retains broad discretion in determining the relevance of evidence." (People v. Garceau (1993) 6 Cal.4th 140, 176-177, abrogated on other grounds by People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
The trial court reasonably found the evidence was relevant. These demanding and derogatory recorded statements tended to corroborate the unrecorded out-of-court reports of charged and uncharged acts of domestic violence, including the reported criminal threat ("Come in or I'll punch your eye shut"), as they demonstrated a tendency by Beard to bully and belittle his female partners. (See Pantoja v. Anton (2011) 198 Cal.App.4th 87, 119 [in civil employment discrimination case, holding "bitch" was a "derogatory epithet directed against women" and "probative of the user's discriminatory intent" (fn. omitted)]; People v. Becerrada (2017) 2 Cal.5th 1009, 1012, 1023 [affirming admission of photo of defendant's tattoo depicting a woman in a sexually submissive pose over Evid. Code, § 352 objection in capital case charging defendant with murdering his ex-romantic partner].)
Beard argues the court erred in refusing to exclude the evidence pursuant to Evidence Code section 352. This statute gives the trial court discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) "A trial court's exercise of discretion under section 352 will be upheld on appeal unless the court abused its discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner." (People v. Thomas (2012) 53 Cal.4th 771, 806.) In light of other content in the jail calls, the court did not abuse its discretion in finding the initial "Pick up the phone, bitch" comments would not be unduly prejudicial. Beard used profanity and demeaning epithets throughout the calls, with several such terms appearing on nearly every page of the 60-page transcript of the calls. Beard also issued repeated demands, including "Shut the fuck up with that shit," and "Come get me out this motherfucker [jail]." On this record, even if admission of Beard's initial comments were error, no prejudice has been shown. C. Prosecutorial Error in Closing Argument
Beard has forfeited his argument that the evidence should have been excluded under Evidence Code section 1101, subdivision (a), because he did not raise it at trial.
The profanity and derogatory content of the call portions played for the jury included such words and phrases (or some variation thereof) as "fuck," "shit," "bitch," "motherfucker," "nigger," "faggot ass," "dummy," "stupid-ass," and "retarded."
As suggested by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, we use the term "prosecutorial error" rather than "prosecutorial misconduct" to more accurately reflect that no showing of bad faith is required to establish the error. --------
Beard argues the prosecutor misstated law applicable to the criminal threats charge in his rebuttal closing argument, and the trial court failed to correct the error. Specifically, he argues the People erroneously told the jurors they did not need to view Beard's alleged threatening statement to S.D. with caution, despite an instruction directing them generally to do so. The People argue there was no error and, in any event, any error was harmless. We agree.
1. Background
The jury was instructed pursuant to CALCRIM No. 1300, which provided in part: "The defendant is charged in Count Three with having made a criminal threat in violation of Penal Code section 422. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [S.D.]; [¶] 2. The defendant made the threat orally; [¶] 3. The defendant intended that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to [S.D.] a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused [S.D.] to be in sustained fear for her own safety; [¶] AND [¶] 6. [S.D.'s] fear was reasonable under the circumstances."
The jury also was instructed with CALCRIM No. 358: "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded." (Italics added.)
In closing argument, the prosecutor argued Beard was guilty of making a criminal threat when he told S.D. on December 25, 2015, "Come in or I'll punch your eye shut." In the defense closing argument, counsel noted that Officer Beaird did not record his interview with S.D. where she reported the threat and asked rhetorically: "[H]ow interested would you be to hear how it is she answered those questions? Where did she pause? Where did she repeat? Did she embellish? Was she guessing? Was she assuming? [¶] That's lost without a recording. And you know what? The law tells us about this. The law cautions us, . . . 'Consider with caution any statement attributable or made by the defendant tending to show guilt unless the statement was written or otherwise recorded.' [¶] So this is [S.D.] talking to Officer Beaird, and Officer Beaird then talking to you. . . . [T]here's no recording of the defendant talking, and then there's no recording of [S.D.'s] interpretation of that as she's talking to Officer Beaird. It's not unlike a game of telephone." On rebuttal, the prosecutor noted that Officer Beaird testified he wrote down the threat, "Come in or I'll punch your eye shut," in quotation marks in his notes, indicating he was not paraphrasing S.D.'s statement. She also noted that CALCRIM No. 358 "applies to defendant's statements. . . . [¶] You don't have to give an extra layer of caution to statements of a victim . . . . [¶] . . . [¶] The law is trying to protect a [defendant] from being convicted of a crime based on their own words and very minimal other evidence, unless those words were written or otherwise recorded, but that doesn't apply to [S.D.'s] statements. You don't have to consider those with any special level of caution." Beard objected, claiming the prosecutor was misstating the law, and the court told the jury: "This is argument. Once again, ladies and gentlemen, argument of counsel is not evidence." The prosecutor then said, "There's no instruction like that pertaining to the victim's or witness's statements, I'll say that."
Beard renewed his claim of prosecutorial error in a motion for new trial, which the court denied: "I think in the context of the entire proceedings and the totality of the arguments that I do not believe the jury was misled and I don't believe there is any prejudice . . . [¶] . . . even if there is some error . . . ."
2. Legal Standards
" '[O]n claims of prosecutorial [error] our state law standards differ from those under the federal Constitution.' [Citation.] Under the federal Constitution, a prosecutor commits reversible [error] only if the conduct infects the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' [Citation.] By contrast, our state law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and ' "it is reasonably probable that a result more favorable to the defendant would have been reached without the [error]." ' " (People v. Davis (2009) 46 Cal.4th 539, 612.) " 'To prevail on a claim of prosecutorial [error] based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Dykes (2009) 46 Cal.4th 731, 771-772.)
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (People v. Hill, supra, 17 Cal.4th at p. 829.) In People v. Diaz (2015) 60 Cal.4th 1176, the court held that the cautionary instruction (CALCRIM No. 358) is applicable to a defendant's statements that are charged as criminal threats. (Id. at p. 1181.) "[T]he purpose of the instruction—to aid the jury in evaluating whether the defendant actually made the statement—is served regardless of whether the statement constitutes all or part of the criminal act and whether it is admitted for its truth." (Id. at p. 1184.) Therefore, "the cautionary instruction applies to any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant's guilt—it does not matter whether the statement was made before, during, or after the crime, whether it can be described as a confession or admission, or whether it is a verbal act that constitutes part of the crime or the criminal act itself." (Id. at p. 1187.)
3. Analysis
The prosecutor did not misstate the law. Beard had argued that both Beard's alleged threat and S.D.'s report of the threat should be viewed with caution because they were not recorded. During the argument, he cited CALCRIM No. 358, which applies only to a defendant's statements. In rebuttal, the prosecutor reasonably clarified that CALCRIM No. 358 "applies to defendant's statements. . . . [¶] You don't have to give an extra layer of caution to statements of a victim." She drew a clear distinction in her rebuttal argument between Beard's statement to S.D. and S.D.'s statement to Officer Beaird—contending the latter statement was reliable because the officer wrote it down in quotation marks in his notes. While the comment immediately preceding Beard's objection (CALCRIM No. 358 "doesn't apply to [S.D.'s] statements") could be misunderstood out of context to include Beard's statement to S.D., in the context of the whole rebuttal, the argument was not inaccurate or misleading.
Moreover, the court reasonably found the prosecutor's discussion of CALCRIM No. 358 was neither deceptive nor reprehensible, and it was not reasonably probable that the jury was misled by the argument or that any error affected the jury's verdict on the criminal threats charge. First, the court instructed the jury, "You must follow the law as I explain it to you . . . . If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The court echoed this admonition when it overruled Beard's objection to the prosecutor's argument, although it referred to evidence rather than law. It is not reasonably likely the jury would have relied on an ambiguity in the prosecutor's argument over the clear language of CALCRIM No. 358. Second, the prosecution case on the criminal threats charge was strong. S.D.'s account of the December 25, 2015 incident was otherwise proven accurate as evidenced by the surveillance footage obtained by Officer Beaird and shown to the jury. Beard's threatening remarks to S.D. in his jail calls immediately following the December 2015 incident as well as his threats to D.B. in March 2010 lent further credibility to S.D.'s account. D. Restriction of Defense Closing Argument
Beard argues the trial court unreasonably restricted his closing argument by prohibiting him from comparing the reasonable doubt standard for criminal convictions to the clear and convincing evidence standard for removing children from their parents' care in juvenile dependency proceedings. Again, we find no abuse of discretion.
1. Background
The prosecutor moved in limine to prohibit the defense from " 'restating' the law [on the standard of proof] in a misleading fashion by substituting words that are different from those used in the instructions." Defense counsel told the court he intended to compare the beyond the reasonable doubt standard of proof to other standards, including preponderance of the evidence and clear and convincing evidence. The court volunteered: "I am disturbed typically when the defense wants to use let's say the 'clear and convincing evidence' standard, and they say, 'That's the one that's used in the law when children are taken away from their parents,' or something like that." Defense counsel asked, "Why is that disturbing?" The court replied that "it's misleading and confusing to a jury." Defense counsel argued, "If they don't want us to say, 'The State is taking a baby away from the mother,' I can see why that's a prejudicial way of explaining it, but saying a State determining whether someone is an unfit parent has a higher burden than preponderance of the evidence, and that's still less than beyond a reasonable doubt, I think that's the law . . . ." The court precluded defense counsel from using dependency court as an example of the clear and convincing evidence standard of proof, but allowed him to use the examples of civil fraud and punitive damages. Defense counsel used punitive damages as an example of the clear and convincing evidence standard in his closing argument.
2. Legal Standards
"[A] trial judge has a duty and right to exercise reasonable control over criminal proceedings including argument to the jury. The United States Supreme Court has repeatedly expressed its view that a criminal trial judge has a duty to control the argument of both sides. . . . [I]n Herring v. New York (1975) 422 U.S. 853, 862, the United States Supreme Court held: '. . . In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment. [¶] [However, this] is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He [or she] may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He [or she] may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects [she or] he must have broad discretion. [Citations.]' . . . [¶] Similarly, California law requires a judge to control proceedings including the argument of counsel to the jury. [Penal Code section] 1044 states in clear mandatory language: 'It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.' " (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386-1387.) A trial court's restriction on defense argument to the jury is reviewed for abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 110.)
3. Analysis
As defense counsel implicitly conceded in the trial court, no case law directly addresses the propriety of the specific form of defense counsel's proposed argument. In People v. Holloway (2004) 33 Cal.4th 96, the trial court was held to have not abused its discretion under Penal Code section 1044 when it barred defense counsel from reading only an excerpt from the reasonable doubt instruction during her closing argument rather than the whole instruction. (Id. at p. 137.) The People note appellate courts have cautioned trial courts against modifying or adding to the standard instruction on reasonable doubt because of the risk of error and reversal (see, e.g., People v. Johnson (2004) 119 Cal.App.4th 976, 985-986), but they do not argue that defense counsel is limited to the language of the standard instruction in discussing reasonable doubt in closing.
In the somewhat analogous area of proper defense argument on eyewitness misidentification, courts have rejected defense counsel's attempts to recite facts outside the trial record regarding cases in which defendants had been wrongfully convicted due to misidentification, or to read newspaper articles to the jury recounting such cases. The prevailing rule is that "[c]ounsel may refer the jury to nonevidentiary matters of common knowledge, or to illustrations drawn from common experience, history, or literature [citation], but he may not dwell on the particular facts of unrelated, unsubstantiated cases." (People v. Mendoza (1974) 37 Cal.App.3d 717, 725.) In Mendoza, the court held the trial court "properly permitted defense counsel to draw on common experience for the general notion that children sometimes fabricate accusations against innocent persons, but the court properly denied defense counsel license to read newspaper clippings about unrelated specific crimes, hearsay material which could only confuse the jury with irrelevant facts." (Id. at p. 725; accord People v. Pelayo (1999) 69 Cal.App.4th 115, 122; People v. London (1988) 206 Cal.App.3d 896, 909.) We question whether the standard of proof in a juvenile dependency matter is an issue of "common knowledge," and it certainly is not a matter of law on which the court would instruct. The court could properly conclude that extra-record reference to unrelated proceedings had the potential to confuse the jury.
We find no abuse of discretion by the trial court and, contrary to Beard's suggestion, he was not deprived of his constitutional due process right to present a complete defense to his jury. (See Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) The court properly instructed on the requirement of proof beyond a reasonable doubt. Beard was permitted to argue, and did argue, that proof beyond a reasonable doubt was the most stringent standard imposed by the law, contrasting both preponderance and clear and convincing evidence standards. In any event, we would find any error in these circumstances to be clearly harmless. (See People v. Boyette (2002) 29 Cal.4th 381, 428-429 [applying People v. Watson (1956) 46 Cal.2d 818 reasonable probability standard of prejudice where error did not result in complete exclusion of defense].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.