Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF109587. Terrence R. Boren, Judge. (Judge of the Marin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Modified and affirmed with directions.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
A jury found defendant and appellant Daniel Juan Domingo (hereafter defendant) guilty of three counts of attempted murder, three counts of assault with a semiautomatic firearm, three counts of making criminal threats, three counts of dissuading a witness by force or threat, two counts of felony child endangerment, four counts of misdemeanor child endangerment, and two counts of kidnapping, and found true various special allegations regarding personal use of a firearm. The trial court sentenced defendant to an aggregate determinate term of 42 years four months in state prison, the details of which we recount later in this opinion.
Defendant contends on appeal that the trial court violated his right to confront and cross-examine witnesses when it overruled defendant’s hearsay objections to testimony by the prosecution’s expert witness regarding what defendant claims was the content of reports prepared by other expert witnesses who did not testify at trial. Defendant also claims that the trial court violated Penal Code section 654 by imposing concurrent sentences on counts 7, 8, 9, 13 and 14. Defendant also requests that we amend the abstract of judgment to correctly reflect that the jury found him guilty of attempted murder, but made not true findings on the allegations that he committed the crimes with deliberation and premeditation. We agree with defendant that the sentences imposed on counts 13 and 14 must be stayed, and that the abstract of judgment must be amended. We will make the noted modification and will direct the trial court to amend the abstract of judgment, accordingly. We will affirm the judgment in all other respects.
FACTS
Resolution of the issues defendant raises on appeal does not depend on the facts of the underlying crimes. Therefore, we only briefly summarize the pertinent facts in order to provide a factual context for defendant’s claims, and we take that summary from the facts set out in the parties’ briefs.
On April 20, 2003, defendant pointed a loaded rifle at the 12-year-old and nine-year-old sons of his girlfriend, Silvia, and told the boys he was going to kill them after defendant became infuriated during an argument over the identity of a man who earlier had given the boys money to buy treats from the neighborhood ice cream truck. While telling them he was going to kill them, defendant actually pulled the trigger on the rifle after pointing the gun in the face of each boy, but the gun did not discharge either time. The gun also did not discharge when defendant pointed the rifle at Silvia and again pulled the trigger. Defendant then forced the boys at gunpoint to get in a car so that they could drive around and find the guy who had given the boys money. Ultimately defendant drove to a liquor store to buy beer.
After defendant drove away with the boys, Silvia called 911, and police officers went in search of defendant’s car. When defendant noticed a police car, he threw his rifle out the car window. He threatened to kill the older boy if he told the police about the rifle. Defendant then drove back to the house he shared with Silvia and the police arrested him. While seated in the back seat of the police car, defendant stuck his middle finger out at the boys and told them he would kill them when he gets out.
The older of the two boys spoke with the police and showed them where defendant had thrown the rifle out the car window. An officer recovered the rifle, which later examination revealed was a semiautomatic with a.22-caliber round stuck in the chamber. A criminalist determined the rifle was in working order. The safety on the rifle was off, so the round would have fired had it loaded properly in the chamber. There were five rounds in the rifle, one jammed in the chamber and four in the tube. In his statement to the police, defendant denied everything. He claimed that Silvia had been brainwashing her children to believe defendant had a gun. Defendant did not testify at trial but he did present evidence in the form of expert witness opinions to show, due to voluntary intoxication, that defendant was unconscious and did not have the required mental state to commit the charged crimes.
We recount additional details below as pertinent to the issues defendant raises on appeal.
DISCUSSION
We first address defendant’s claim that the trial court erred in overruling his hearsay objections to statements made by the prosecution’s expert witness.
1.
EXPERT WITNESS HEARSAY STATEMENTS
The prosecution’s expert witness, Dr. Craig Rath, a clinical psychologist, testified in pertinent part, based on his review of the police reports, witness statements, other doctor’s reports, and his interview of defendant, that defendant was not medically or psychologically unconscious at the time he committed the acts in question. According to Dr. Rath, defendant engaged in goal directed behavior, which means that he thought about what he wanted to accomplish and then took steps to accomplish it. For example, defendant told Dr. Rath that he threw the rifle out the car window because the weapon was not registered and he did not want to get in trouble. Dr. Rath explained that goal directed behavior “is a higher level thought process in relation with alcohol” and “shows a combination of thinking processes: Abstraction, anticipation, and acting in such a way to accomplish an end.”
In the course of his testimony, Dr. Rath recounted statements defendant made to other doctors who had interviewed defendant but who did not testify at trial. Defendant objected to the admissibility of some of those statements on the ground they were hearsay. The trial court overruled defendant’s objections. Defendant contends the trial court erred. To support his claim of error, defendant relies on People v. Bordelon (2008) 162 Cal.App.4th 1311 (Bordelon). In fact, as the Attorney General notes, Bordelon holds that the trial court’s ruling in this case was correct.
In Bordelon, the trial court sustained hearsay objections to a psychologist’s trial testimony regarding statements the defendant had made to another psychologist a week after the defendant’s arrest. On appeal, the defendant argued that the trial court had erroneously excluded his statements, which were admissible to show a basis for the opinion expressed by the psychologist who testified at trial. (Bordelon, supra, 162 Cal.App.4th at p. 1324.) Division One of the First District Court of Appeal agreed with the defendant, and in doing so rejected the People’s claim that the defendant’s statements were inadmissible under People v. Campos (1995) 32 Cal.App.4th 304 (Campos). (Bordelon, at pp. 1325-1326.)
The Bordelon court explained, citing Evidence Code section 801, subdivision (b), and quoting Campos, supra, that, “‘On direct examination, the expert witness may state the reasons for his or her opinion, and testify that reports prepared by other experts were a basis for that opinion. [Citation.] [¶] An expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. “‘“The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.”’” [Citations.] [¶]... [¶] “[D]octors can testify as to the basis for their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury.”’ [Citations.]” (Bordelon, supra, 162 Cal.App.4th at pp. 1325-1326.) “While the italicized language would suggest that no expert could ever refer during direct examination to the contents of another expert’s report... Campos cannot be read for such a broad prohibition. Campos and Whitfield [v. Roth (1974) 10 Cal.3d 874, 894, 895] were concerned with preventing the introduction of multiple opinions, insulated from cross-examination, into evidence. Since this concern does not arise unless the expert is relying on other expert opinions, the reasoning of those cases is confined to that situation. This reading is reinforced by the discussion in Mosesian v. Pennwalt (1987) 191 Cal.App.3d 851... another case on which Campos relied, where the expert’s opinion was based in part on the opinions of others [citation]. Mosesian distinguished Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244... finding that the expert there properly relied on another expert’s test calculations because the opinion of the other expert was not solicited. [Citation.]” (Bordelon, at p. 1326, fn. omitted.)
Evidence Code section 801 states in pertinent part, “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶]... [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
With one exception, defendant’s objections in this case were directed to Dr. Rath’s testimony regarding defendant’s statements to other doctors who had examined defendant, and on which Dr. Rath, in turn, relied in forming his expert opinion about defendant’s mental state. Like the expert in Bordelon, Dr. Rath did not relate the other doctors’ opinions regarding defendant, instead he was relying “only on... what defendant said [to those doctors] during their interview.” (Bordelon, supra, 162 Cal.app.4th at p. 1326.) Campos, as the Bordelon court held, “is therefore distinguishable and does not preclude the admission of defendant’s statement.” (Bordelon, at p. 1326.) In other words, the trial court correctly overruled defendant’s hearsay objections.
As previously noted, there is one instance in which Dr. Rath not only recounted defendant’s statements to Dr. Kirkish regarding hallucinations defendant claimed to have experienced, but also related Dr. Kirkish’s opinion that defendant’s statements were not credible. Although Dr. Kirkish did not testify at trial, defendant’s attorney did not object to Dr. Rath’s testimony in that regard. Defense counsel also did not assert hearsay objections to all of the statements defendant now contends were inadmissible. Instead defendant objected on other grounds to some of Dr. Rath’s testimony. Defendant does not contend in this appeal that the trial court incorrectly overruled those other objections.
Although defense counsel should have objected to the previously noted testimony regarding Dr. Kirkish, we do not share defendant’s view that counsel’s oversight deprived defendant of his constitutional right to the effective assistance of counsel. In order to establish such a claim defendant must demonstrate both deficient performance and resulting prejudice, i.e., that but for counsel’s error there is a reasonable probability of a result more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 693.) If trial counsel had objected and Dr. Kirkish’s hearsay statement regarding the credibility of defendant’s hallucination claims had been excluded, the jury would still have heard all the other evidence, including the experts’ opinions and the percipient witnesses’ accounts of what occurred. It is not reasonably probable the jury would have believed defendant’s claim that he was unconscious at the time he committed the acts at issue in this appeal, and as a result would have reached a result more favorable to defendant, if the jury had not heard Dr. Kirkish’s hearsay statement that defendant’s hallucination claims were not credible.
Defendant also contends that his constitutional right to confront and cross-examine Dr. Kirkish was violated in this case. Assuming, without actually deciding, that a violation occurred (see Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9), it was harmless beyond a reasonable doubt. We have no reasonable doubt that the jury’s verdict in this case was not influenced by Dr. Rath’s isolated and brief statement that Dr. Kirkish questioned the credibility of defendant’s claim that he had experienced hallucinations.
2.
We next address defendant’s claim that the trial court should have stayed execution of the sentences imposed on counts 7, 8, and 9, the counts on which the jury found defendant guilty of making criminal threats (Pen. Code, § 422), and on counts 13 and 14, the felony child endangerment counts (Pen. Code, § 273a, subd. (a)). The Attorney General concedes the error with regard to the felony child endangerment convictions, but contends the sentences on the other counts should not be stayed. We agree with the Attorney General for reasons we now explain.
Penal Code section 654, subdivision (a) prohibits multiple punishments for multiple offenses that arise from the same act or indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) When the defendant commits more than one physical act during a criminal enterprise, the question is whether the course of criminal conduct is divisible and “therefore gives rise to more than one act within the meaning of section 654.” (Neal v. State of California, supra, at p. 19.) Resolution of that question, in turn, “depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Ibid.) Defendant did not raise the multiple punishment issue in the trial court at the time of sentencing. Because “the waiver doctrine does not apply to questions involving the applicability of section 654” (People v. Perez (1979) 23 Cal.3d 545, 549-550), we address that issue for the first time on appeal.
We agree with the Attorney General’s analysis that defendant’s act of threatening to kill Silvia and her two sons was intended to intimidate and frighten them, whereas his act of pointing the loaded rifle at each of them and then pulling the trigger was intended to kill them. Because defendant committed separate acts and harbored separate intents, we conclude the attempted murders are separate and distinct crimes from the crimes of making criminal threats. Therefore, the crimes are properly punished separately. Accordingly, we will not stay execution of the concurrent sentences the trial court imposed on counts 7, 8, and 9.
The felony child endangerment convictions (counts 13 and 14) on the other hand involve only one act and intent—defendant’s act of pointing the loaded rifle at each boy and then pulling the trigger. That is the same act upon which defendant’s attempted murder convictions are based, as the prosecutor argued in his closing. Because the crimes involved a single act, execution of the sentences imposed on counts 13 and 14 must be stayed, and we will modify defendant’s sentence, accordingly.
We also must correct the abstract of judgment which incorrectly indicates defendant was convicted on counts 1, 2, and 3 of “1st Attempted Mu.” In fact, the jury found that defendant’s acts were “not willful, deliberate and premeditated.” Therefore, we will direct the trial court to amend the abstract of judgment.
DISPOSITION
The judgment is modified by staying execution of the sentences imposed on counts 13 and 14, defendant’s felony child endangerment convictions. As modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects the modification of defendant’s sentence and that also correctly reflects that defendant was convicted on counts 1, 2, and 3 of attempted murder without premeditation and deliberation. The trial court is directed to forward copies of the amended abstract of judgment to the appropriate governmental agencies and entities.
We concur: Hollenhorst, Acting P.J., King, J.