Opinion
C056530
9-29-2008
THE PEOPLE, Plaintiff and Respondent, v. MALIK NUMAN, Defendant and Appellant.
Not to be Published
A jury convicted defendant Malik Numan of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and simple battery (Pen. Code, § 242). Defendant admitted prior strike and prison term allegations and the court imposed a seven-year state prison term.
On appeal, defendant contends 1) admitting the victims statements in a 911 call was an abuse of discretion and violated due process; 2) the court abused its discretion in failing to hold an Evidence Code section 402 hearing on the 911 call; 3) the courts denial of defendants People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) motion violated his right to jury trial and was an abuse of discretion; and 4) errors were made in calculating his presentence credits.
We modify the award of credits and affirm the judgment.
FACTS AND PROCEEDINGS
In the early morning of September 2, 2006, defendant and his wife, Monica Sterling-Numan, were having an argument in their Elk Grove home. The argument started the previous evening regarding Sterling-Numans accusations of infidelity.
Defendant did not want to continue the argument, so he got dressed, took his keys, and started to leave the house. Not wanting her husband to leave, Sterling-Numan got dressed and followed him outside to the front of the house, where the couple had a Mazda van and a Mercedes E300 parked in the driveway and a Mercedes S500 parked in the garage. She got into the van and moved it to block the driveway.
According to her trial testimony, Sterling-Numan continued to argue with defendant after she got into the van. Defendant started toward the S500, so Sterling-Numan got out of the van.
Sterling-Numan testified the two argued for another five to seven minutes and she then struck defendant with a Taser she carried in her purse. Defendant fell back and started to curse her, saying she hurt him. Sterling-Numan tried to strike defendant with the Taser again, but he managed to avoid it by jumping aside. He then pushed Sterling-Numan.
The couple continued arguing and Sterling-Numan tried to strike defendant with the Taser a third time. At this point, defendant punched Sterling-Numan in the face once or twice, between the nose and eye. Sterling-Newman testified defendants attack hurt but did not stun her.
After defendant punched Sterling-Numan, she decided to call the police. The bleeding Sterling-Numan got inside the S500 Mercedes parked in the garage and called 911. She had dialed 911 earlier, but continued arguing back and forth with defendant for awhile before making the call. Defendant stood by her side, telling Sterling-Numan not to make the call as she dialed 911. While Sterling-Numan talked to the 911 dispatcher, defendant managed to leave in the E300 Mercedes.
Sterling-Numan was treated at the emergency room that morning. She had two lacerations around the left eye, requiring a total of eight sutures. She told the treating physician her husband had punched her in the eye an unknown number of times, and that on a scale of one to 10, her pain level was a 10.
A subsequent examination discovered evidence of an orbital fracture, which was likely caused by a recent incident. Testifying as a defense witness, Sterling-Numan claimed the orbital fracture was an old injury she suffered in a fight with her prior husband.
Elk Grove Police Officer Daniel Emerson got to the home at approximately 2:11 a.m. Sterling-Numan was distraught, alert, and "shaken up" with noticeable bloody injuries on her face.
Officer Darren Robert Hall was also dispatched to the scene. He saw a small amount of blood on some paper between the driver and passenger seats of the Mercedes S500 parked in the garage.
Officer Hall interviewed Sterling-Numan at the emergency room as she was awaiting treatment. The officer described Sterling-Numan as "emotional" and showing signs of having cried and being "really concerned about the situation." Sterling-Numan told Officer Hall she and defendant had a discussion in their upstairs bedroom and defendant decided to leave the house as he did not want to continue the discussion. In order to keep defendant from leaving, Sterling-Numan went downstairs and moved the van to block the other cars.
Defendant came downstairs and yelled at Sterling-Numan to get out of the van, which she was reluctant to do. Defendant pulled Sterling-Numan from the van and threw her onto the hood of another vehicle parked in the driveway. He then punched her in the face two times, causing Sterling-Numan to fall off of the vehicle.
Sterling-Numan then went to the car parked in the garage, locked the doors, and called 911. In her interview with Officer Hall, Sterling-Numan expressed fear of defendant being jailed over the incident.
Defendants parole agent learned about the incident on September 13 and called defendant and Sterling-Newman at their home the next day. Defendant said he got into an argument with his wife, and she injured her eye by jumping on the car.
Sterling-Numan told the parole agent she got into her car to try to keep defendant from leaving home, but he pulled her from the vehicle, threw her on top of another car, and hit her twice in the face or eye. When told defendant denied hurting her, Sterling-Numan said, "he hit me."
A tape and transcript of Sterling-Numans 911 call was admitted over defendants hearsay objection as an excited utterance (Evid. Code, § 1240). The parties stipulated defendants voice could be heard in the background of the call yelling this would send him back to prison.
The call was taken by the Highway Patrol and transferred to the Elk Grove Police Department. The connection was lost, but the Elk Grove Police Department successfully called Sterling-Numan back. Sterling-Numan told the dispatcher defendant left no more than five to seven minutes in a black E300 Mercedes. Asked if she needed medical attention, Sterling-Numan replied: "I dont know. Ive never been hit on before and, um, all I know is he punched me in the eye" and then saying: "And in my nose and threw me on the car. So Im not sure because I never been, um, — I never been hit on. He never hit me before, and Ive never been hit on."
Sterling-Numan next told the dispatcher her eye was closed and she did not know if the blood was coming from her eye or nose. She explained what she thought was defendants likely route from home and started to cry after being told to stay on the line, saying: "I dont want my kids to see me cuz they never seen me like this before." She also told the dispatcher her eye "dont feel right."
After being transferred to the fire department, Sterling-Numan exclaimed defendant was "on parole" and that he needs counseling, "But for him to hit me like this, he aint never did nothing like this before." Asked by the fire department dispatcher what happened, Sterling-Numan replied she had a "little dispute" with defendant, and he said he wanted to leave, so she put a car in front of the garage so he could not leave. "And so then when I didnt move the car, he snatched me out of the car and, I dont know, I guess we was tussling out here in the front." Sterling-Newman continued: "He threw me on the other car" which was "parked on the other side of the van."
Asked if she was seriously bleeding, Sterling-Numan said, "Im bleeding from the nose and Im not sure from the eye. Ive never been hit before" and "I dont know. I know blood is just dripping everywhere." Sterling-Numan could not tell the dispatcher if she was injured anywhere else because she was "upset." Asked what time the incident took place, she told the dispatcher, "So it had to happen within the last twenty — fifteen minutes. Or, I dont know."
Sterling-Numan next told the dispatcher: "I dont know what — you know, right before I called" and then said: "If, uh, — and then so he — he hit me in the nose and eye. He socked me in the eye and the nose."
The dispatcher told Sterling-Numan how to treat a bloody nose and she responded by saying, "Ooh, my eye is shut. It is shut." After being told to stay on the line until help arrives, she said, "I never been through nothing like this, so what happens." The dispatcher told Sterling-Numan an officer was coming out to meet her, and she expressed dismay, and, in seeming reference to her son, stated, "He dont know. He — um, when I came out of the bathroom just now —" and "— he had just left off the couch and went upstairs, so he havent seen me." She did not want her son to see her like this because "we never done this before."
Sterling-Numan told the dispatcher defendant was a parolee, having gone to jail in the Bay Area, and "I dont know if they said attempted (unintelligible) or something like that. Im not sure. Weve been married four years" and "I dont know where the blood is coming from. It look like it came from my eye, too. I dont know. I know it came from my nose cuz it was dripping in the car. Oh, my God. Im gonna call my mom."
Sterling-Numan concluded the call by telling the dispatcher the number and ages of her children, and exclaiming she had broken two nails. She ended the call after saying defendant was calling on another line.
DISCUSSION
I
Admission of the 911 Call Recording
At an in-limine hearing, the People moved to admit a tape recording of the 911 call as an excited utterance, pursuant to Evidence Code section 1240. Defendant objected, arguing it was clear from the tape Sterling-Numan was not under the influence of the incident when she made the call. Defense counsel also asked the court for an Evidence Code section 402 hearing on whether Sterling-Numan discussed calling 911 with defendant before making the call.
The court stated a section 402 hearing was only for the courts use when it believed some foundation had not been laid. This was not the case here, the court concluded, as after having listened to the call and reading the cases cited by the parties, the court was able to determine Sterling-Numan was under the influence of the incident when she made the call. The court came to this conclusion based on Sterling-Numans demeanor and unresponsive answers during the call, which demonstrated spontaneity rather than reflection.
Defendant contends the court abused its discretion by admitting the call and not holding a section 402 hearing, and admitting the call also violated his due process rights.
We disagree.
Evidence of an extrajudicial statement may be admitted as an exception to the hearsay rule if it purports to narrate, describe, or explain an act, condition, or event perceived by the declarant, and was made spontaneously while the declarant was under the stress of excitement caused by such perception. (Evid. Code, § 1240.) Admissibility under this rule of evidence requires (1) some occurrence that is startling enough to produce nervous excitement and to render the statement spontaneous and unreflecting, (2) the statement must have been made while the declarant was still under the influence of nervous excitement and did not have time to contrive and misrepresent, and (3) the utterance must relate to the occurrence preceding it. (People v. Poggi (1988) 45 Cal.3d 306, 318 (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.]" (Poggi, supra, 45 Cal.3d at p. 318.) That discretion is at its broadest when the trial court determines whether the utterance was made before there had been time to contrive and misrepresent. (Id. at pp. 318-319.)
Defendant argues Sterling-Numans conversation with the 911 dispatcher was not made under the stress of the assault. He notes the interview came as a result of a call back after Sterling-Numans call was disconnected, and characterizes her conversation with the dispatchers as "a police interview [of] the transcript which consumed 15 pages." Defendant claims there is nothing "spontaneous" or "excited" about Sterling-Numans statements in the call, and nothing in the transcript indicted her reflective faculties had been stilled.
While the 911 conversation is a result of a call back rather than an initial call, there is no evidence of any significant delay between the two calls. The record shows the call back happened a relatively short time after the incident. During the conversation with the dispatcher on the call back, Sterling-Numan stated she was not sure how long it was between the assault and the call, but thought it might have been between 15 and 20 minutes. At trial, she testified that she called 911 about 10 minutes after being hit by defendant.
Defendants attack on Sterling-Numan was traumatic, leaving her with wounds around her left eye requiring eight stitches and a likely orbital fracture. She told the treating physician at the emergency room her pain was a 10 on a one to 10 scale. She related her physical condition to the dispatcher at several points during the call, such as noting her eye had swollen shut and she apparently was bleeding from her nose and eye.
The 911 conversation was made soon after defendants assault and Sterling-Numan informed the dispatchers about the assault, its perpetrator, and her resulting injuries. It also, contrary to defendants contention, was made while Sterling-Numan was under the influence of the assault. Her crying and occasionally disjointed or nonresponsive answers demonstrate the continuing influence of the incident on her.
Defendant correctly asserts that the timing of the utterance is not dispositive in determining whether the hearsay exception applies. "Neither 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. Washington (1969) 71 Cal.2d 1170, 1176.) However, time is still an important factor in determining whether a statement is spontaneous (Poggi, supra, 45 Cal.3d at p. 319), and the relatively short time between the assault and the call supports the trial courts conclusion that Sterling-Numan called 911 while still under the influence of the attack.
Nor does Sterling-Numans ability to describe some of the events in a coherent, narrative fashion rob the statements of their spontaneity. A spontaneous statement can be made by someone who is calm enough to give some coherent statements. "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.)
"`The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance — how long it was made after the startling incident and whether the speaker blurted it out, for example — may be important, but solely as an indicator of the mental state of the declarant." (People v. Raley (1992) 2 Cal.4th 870, 892-893, quoting People v. Farmer (1989) 47 Cal.3d 888, 903-904.)
Again, whether a statement is spontaneous is essentially a question of fact. (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.) The courts determination that the statements were spontaneous utterances was made after listening to the call, and, as discussed, is amply supported in the record. There was no abuse of discretion.
The court was not required to hold an Evidence Code section 402 hearing. Section 402 is a procedure for the trial court to determine, outside the jurys presence, whether there is sufficient evidence to sustain a finding of a preliminary fact upon which the admission of other evidence depends. The procedure is commonly used to determine questions like "the existence of a privilege, the qualification of a witness, the admissibility of a confession, or the authenticity of a writing." (People v. Galambos (2002) 104 Cal.App.4th 1147, 1157.) The decision to hold a section 402 hearing is within the courts discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.)
As we have already discussed, ample evidence supported the courts conclusion that the 911 call was admissible as an excited utterance. The court could reasonably decide that the evidence already in its possession, the tape and transcript of the call, were better sources of the declarants mental state than any testimony from Sterling-Numan over one year after making the call.
Since the court committed no error in admitting the 911 call, defendants due process rights were not violated.
II
The Romero Decision
Pursuant to an agreement with the People, defendant waived his right to jury trial, and admitted allegations of a prior strike and prior prison term in exchange for the People dismissing allegations of aggravating factors and a prior serious felony. At sentencing, the court denied defendants Romero motion to dismiss the strike pursuant to Penal Code section 1385.
In evaluating defendants Romero motion, the court first noted defendants criminal record: convictions for a misdemeanor second degree burglary in 1982, misdemeanor forgery, carrying a concealed firearm and robbery in 1983, robbery in 1984, two counts of misdemeanor disturbing the peace in 1997, and possession of cocaine base for sale with a gun enhancement in 2002. The court also recognized defendant had spent a considerable time free from criminal convictions and declared it was considering the facts and circumstances of the case when evaluating the Romero motion.
In denying the motion, the court found the assault was "vicious" and it rejected his self-defense claim "as this jury rejected" it. The court also stated it did not believe Sterling-Numans testimony that she used a Taser on defendant, believing, as the jurys verdict also reflected, that defendant lost control in an argument and hit his wife "very, very hard, and she suffered very serious injuries." The court felt defendant had already been given a break as the People chose not to allege one of his two prior strikes. In light of these factors, the court concluded defendant did not fall outside the spirit of the three strikes law and denied his Romero motion.
Defendant contends the denial of his motion violated his right to jury trial and due process pursuant to Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and was an abuse of discretion. We reject both claims.
A.
The United States Supreme Court held in Cunningham, supra, 549 U.S. at page ___ that under Californias determinate sentencing law, the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be submitted to the jury and proved beyond a reasonable doubt. (Ibid.) Cunninghams rule is derived from Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.)
This rule has no application to a Romero motion. Under the three strikes law, a prior strike allegation must be proven beyond a reasonable doubt to the jury. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 833-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1316.) This protects the defendants jury trial and due process rights under Apprendi. (See People v. Superior Court (Andrades), supra, 113 Cal.App.4th at pp. 833-834; People v. Lee, supra, 111 Cal.App.4th at p. 1316.)
Since defendants maximum sentence, the one-strike sentence, was established when he waived his right to jury trial and admitted the allegation, the courts decision not to dismiss the strike cannot violate Cunningham or Apprendi. Whether, as defendant argues, the jurys verdict rejected some of the grounds the court relied on for denying the Romero motion is beside the point. The rule of Cunningham and Apprendi simply does not apply to a motion to dismiss a strike.
B.
A trial court has discretion to strike a prior serious felony conviction only if the defendant falls outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) In deciding whether to do so, the 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 schemes 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." (Williams, supra, 17 Cal.4th at p. 161.)
The trial courts "failure to . . . strike a prior [felony] conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not `aware of its discretion to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]." (Id. at p. 378.)
In reviewing the denial of a Romero motion for an 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." [Citation.] Second, a `"decision will not be reversed merely because reasonable people might disagree. `An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citation.] 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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
Thus, only in "an extraordinary case — where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ" — would the failure to strike a prior felony conviction be an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)
Defendant submitted numerous letters regarding his character, his contributions to the community, and his clean record for a considerable time, which the court read and considered. He claims the court did not properly exercise its discretion because its statement of reasons for rejecting his motion shows the court failed to consider factors other than the circumstances of the crime, and even if it did consider these factors, the denial of his Romero motion was "patently unreasonable."
The forfeiture doctrine applies to "claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices." (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant forfeited his claim on appeal by remaining silent in the face of the courts denial of his Romero motion, making no objection to either the decision or the reasoning given by the court.
In any event, defendants claim fails on the merits. While Penal Code section 1385 requires that the court state its "reasons for the dismissal," there is no such requirement where the court denies a request to dismiss a prior strike. (See Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 531.) "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
There is no indication the court failed to consider all of the relevant factors. It stated it had read and considered the mitigating evidence presented by defendant. In addition to considering the facts of his crimes, the court related defendants lengthy criminal record, his long period of lawful conduct, and the Peoples leniency in declining to prosecute this as a three strikes case. The record amply demonstrates the court was well aware of all relevant factors when ruling on the Romero motion.
Nor was this ruling, as defendant contends, "patently unreasonable." Defendants ability to live crime free for at least 12 years, build a solid career, a family, and a record of charitable work are commendable, just as his more recent fall — his current convictions as well as the 2002 conviction — is tragic. However, as worthy as defendants contributions to society have been, they must be considered in light of his extensive criminal record and the violence of the crimes for which he was sentenced. Most importantly, as the court noted, defendant had already been given considerable leniency by the Peoples decision not to allege one of his two prior strikes. Defendant clearly was within the spirit of the two-strike provision of the three strikes law.
III
Presentence Credits
Finally, defendant contends and the Attorney General concedes, the trial court erred in limiting his presentence credit to 20 percent. We agree.
The court awarded 402 days credit, consisting of 322 days actual time and 80 days "local conduct" credits. In awarding the credits, the court stated, "He gets 20 percent credits," apparently under the misapprehension that under Penal Code section 1170.12, all defendants with prior strike convictions earn only 20 percent of presentence credit.
In People v. Thomas (1999) 21 Cal.4th 1122, our Supreme Court held that a defendant subject to the three strikes law, whose current offense is not a violent felony, is eligible for section 4019 presentence credits of two days earned for six days served, rather than 20 percent. (Id. at p. 1124.) Section 1170.12, subdivision (a)(5) limits only postsentence conduct credits for nonviolent strike defendants, not presentence conduct credits. (Id. at p. 1125.)
When section 4019 applies, a defendants presentence good-time/work-time credit is calculated by dividing the days of actual custody by four, discounting any remainder, and multiplying the whole number quotient by two. (People v. Culp (2002) 100 Cal.App.4th 1278, 1282-1283.) Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits. (Ibid.)
We shall modify the award of credit. The probation report and both parties agree that defendant served 322 actual days. Under the law, defendant is entitled to 160 days conduct credit under section 4019.
DISPOSITION
The judgment is modified to reflect presentence credit of 322 actual days and 160 days local conduct credit under Penal Code section 4019, for a total credit of 482 days. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur:
RAYE, Acting P.J.
MORRISON, J.