Opinion
A117171
5-9-2008
THE PEOPLE, Plaintiff and Respondent, v. ASHISH VARMAN PRASAD, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant Ashish Varman Prasad beat his girlfriend during a reign of terror, in which he punched her on the arms, legs, and elsewhere about her body, and pointed a loaded gun to her head and pulled the trigger. Miraculously, the gun did not fire.
A jury convicted defendant of attempted first degree murder (Pen. Code, §§ 664, 187, subd. (a) (count 1)), two counts of corporal injury to a cohabitant (§ 273.5, subd. (a) (counts 4 & 6)), assault with a semiautomatic firearm (§ 245, subd. (b) (count 5)), and unlawful possession of a firearm (§ 12021, subd. (c)(1) (count 7)). The jury found true the allegations that defendant had personally used a firearm during the commission of the attempted first degree murder (count 1), one count of corporal injury to a cohabitant (count 4), and the assault with a semiautomatic firearm (count 5). (§§ 12022.53, subd. (b), 12022.5, subd. (a).) The jury also found true the allegations that defendant had been previously convicted of corporal injury to a cohabitant in December 2003. (§ 273.5, subd. (e)(1) (counts 4 & 6).) After waiving his right to a jury trial on a serious felony prior conviction related to a 1992 battery (§ 243, subd. (d)), the trial court found defendants strike allegation true (§§ 667, subd. (a), 1170.12, subd. (c)(1)). The trial court sentenced defendant to a total prison term of 29 years.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant claims the trial court committed various evidentiary errors, which violated his federal constitutional rights to confrontation, due process, and equal protection. Defendant further argues that he cannot be convicted for two violations of section 273.5 (counts 4 & 6) because he engaged in a single, continuous course of conduct. Alternatively, he claims a remand for resentencing is required because the trial court erroneously failed to stay the sentence imposed on count 6 under section 654. We affirm.
II. FACTS
The victim, known as Jane Doe at trial, lived with defendant for about eight months during 2005. Beginning on the evening of October 6, 2005 through the morning of October 7, 2005, defendant severely beat Doe. Once the attack began, Doe stayed awake for more than 24 hours. During this time, defendant did not let Doe out of his sight, not even to use the bathroom. Doe sustained massive bruising on her arms and legs, as well as bruises to her face and chest. Defendant held a gun to Does head and pulled the trigger twice, but the gun did not fire.
After defendant tried to shoot her, Doe experienced trouble breathing, so on the afternoon of October 7, 2005, defendant took her to Kaiser Hospital in South San Francisco, where Doe worked as a nurse. While at the hospital, Doe met with a coworker, Jane Mangarin, who was a fellow nurse. Doe first asked Mangarin if she could keep a secret "about a matter of life and death." Doe then took Mangarin into the bathroom and showed her the bruises that were on her body. Doe told Mangarin "she was beaten by her boyfriend." Mangarin told Doe to go to the emergency room and suggested that Doe take photographs of the bruises.
Mangarin took photographs of Does bruises. Doe cried when she met with Mangarin. While she was at the hospital, Doe did not call the police because defendant was circling outside in his car, and she was "very afraid of what would happen" if she reported the attack.
Stephen Brown and his wife, Annette Brown, were ministers at the church Doe attended. On the evening of October 7, 2005, Doe and defendant had planned to host a bible study group led by Stephen. Approximately 7:00 p.m., Stephen called Doe on her cellular phone to cancel the meeting because he was very ill with a severe, migraine headache. During this conversation, Doe told Stephen that "something had happened," and that she needed a ride. Doe sounded terrified; Stephen had never heard Doe sound frightened like this before. He tried, without success, to reach Annette to ask her to pick up Doe. Despite feeling extremely ill, Stephen decided he would get Doe and bring her back to his house. Stephen explained, "I didnt feel like I was physically able to go, but I heard in her voice this fear that made me want to go anyway. So I think its—its a testament to how much I felt like she was afraid that I went ahead even though I felt very sick." Doe subsequently called Stephen and told him that she had arranged a ride to the police department and that she would meet him there.
We refer to the Browns by their given names for the sake of clarity and not out of disrespect. (See, e.g., In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1549.)
When Stephen met Doe at the police station, he noticed immediately that she was very afraid. He told her "if something serious [has] happened and she needed to report it to the police, this would be a good opportunity since she was in a police station." Doe told Stephen that she did not want to talk to the police at that time. Stephen suggested that they drive back to his house because he was very ill. He was so sick that he even vomited at the police station.
Once he arrived home, Stephen went to bed and left Doe to talk with Annette. Annette noticed that Doe had difficulty breathing and that she was short of breath. Before Doe would talk to Annette, she insisted on calling her brother Joseph to let him know that he was in danger from defendant. After calling Joseph, Doe told Annette about the beating and showed her the bruises on her body. Doe also told Annette that defendant had held a gun to her head and pulled the trigger twice, and that he became very angry when the gun did not fire.
Annette suggested calling the police. However, Doe did not want to report the incident to the police because she was afraid it would prompt defendant to harm her brother Joseph. After talking about the incident for more than two hours, Doe agreed to contact the police. Doe asked the police for an escort to her house to pick up her belongings. When the dispatcher hesitated, Annette told Doe to tell the dispatcher what had happened. Doe then shouted, "somebodys trying to murder me."
At the police station, Doe was still crying and emotional. From the police station, Doe made four recorded telephone calls to defendant (collectively referred to as the "pretext call"). During the pretext call, defendant repeatedly failed to deny Does accusations that he had harmed her. Defendant also berated Doe and made violent statements indicating that he would continue to harm her.
The pretext call, which was partly in Hindi, was played at trial with an English translation that was distributed to the jury.
On October 8, 2005, police searched defendants residence and discovered a semiautomatic handgun with two magazines in the bedroom he shared with Doe. The gun was loaded and one of the bullets had a dent on it, indicating that the gun had not fired when the trigger was pulled.
On October 13, 2005, John Dunsford, a longtime friend of defendant, visited defendant and Doe at their residence. When defendant left the room, Doe showed Dunsford a red mark on her chest. According to Dunsford, Doe said the mark came from a punch.
Defendants former wife, Joyteshna, also known as Joti, testified that defendant had beaten her in 2003 and had violated a domestic violence restraining order in 2005.
Prior to trial, Doe recanted her allegations against defendant in several written statements. Despite having been granted use immunity and cited for contempt, Doe refused to testify at trial.
III. DISCUSSION
A. Does Statements to Coworker and Minister
Defendant challenges the trial courts decision to admit the statements Doe made to Mangarin and Annette. He contends this evidence was inadmissible hearsay and that its introduction violated his Sixth Amendment right of confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree with both contentions and find the evidence was properly admitted.
1. Background
Before trial, the prosecution filed a written motion to admit the challenged evidence. The prosecutor claimed: (1) the statements fell within the spontaneous declaration exception to the hearsay rule; and (2) they were outside the scope of Crawford because they were nontestimonial.
The prosecution also sought to admit statements Doe made to Stephen. However, the trial court determined that there was not any specific hearsay statement made to Stephen and that Stephens testimony constituted "demeanor evidence."
The prosecution also claimed the statements were admissible under the doctrine of forfeiture by wrongdoing. However, the trial court did not rule on this contention, so we need not address this issue.
At the hearing on the motion, Annette testified that from the outset of her conversation with Doe, Doe was "[v]ery afraid . . . sort of shaking . . . ." Annette had never seen Doe act like this before. Doe had trouble breathing as she told Annette about the attack. It was very clear to Annette that Doe was "terrified and terrorized by the events" and that Doe "was dealing with something very immediate that . . . had affected her drastically." Doe appeared to be reliving the events as she described them to Annette. As Doe told Annette about defendant firing the gun at her, Does eyes were big and she was gasping for breath; Annette said Doe was "just terrified."
Mangarin testified that there was panic in Does voice when she asked Mangarin if she could "keep [a] secret" about a matter of "life and death." Mangarin had never seen Doe act like this before. When Mangarin asked Doe how she got the bruises, Doe said "that her boyfriend beat her." Mangarin further testified that there were brochures about domestic violence in the bathroom. She explained that she told Doe that she should get medical help and get everything "documented." Mangarin also offered to take photographs of Does bruises using her cellular phone, which had a camera. Doe, however, remembered that she had a camera in her car. Doe left and returned with her own camera a few minutes later. Mangarin then used Does camera to take the photographs. During the entire time Doe was with Mangarin, Doe acted scared and afraid.
In seeking to exclude the statements, defense counsel argued they were testimonial hearsay barred under federal and state law. The trial court ruled Does statements (1) qualified for admission under the spontaneous declaration to the hearsay rule, and (2) were not barred by Crawford because they were not made "either to law enforcement officers or in contemplation of a criminal prosecution or police investigation."
2. Does Statements Were Spontaneous Declarations
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." "`The foundation for this exception [to the hearsay rule] 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 ones actual impressions and belief." [Citation.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.) As the inquiry into whether a statement qualifies as a spontaneous declaration is factually driven, we will not disturb the trial courts ruling on this issue unless there has been a demonstrable abuse of discretion. (Ibid.)
Defendant argues that Does statements were not made while still under the stress of excitement because she had an opportunity to deliberate and reflect. Defendant predicates this argument on his assertion that there had been at least 12 hours between the incident and the statements.
The court in People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1598 (Saracoglu), recently rejected an analogous argument. The defendants wife Rachel went directly to the police station after her husband had choked and hit her, and threatened to kill her. She was crying, shaking, and " `very scared " when she made her statement. (Id. at p. 1587.) In opposing the admission of the statement at trial, Saracoglu argued that too much time had elapsed between the alleged existing event and Rachels statements and that Rachel had an opportunity to deliberate and reflect. (Id. at p. 1589.) The court disagreed, concluding that no more than about 30 minutes had elapsed and ruling that the mere passage of time was insufficient to deprive the statement of spontaneity. (Ibid.) The court further concluded that the fact that "Rachel had the wherewithal to drive herself and her child to the police station in order to make her escape," did not deprive her statement of spontaneity. (Ibid.) In so holding, the court explained: "The crucial issue is the declarants mental state and the evidence shows Rachel was quite distraught; when [the officer] initially encountered her at the police station, she was crying, shaking and fearful." (Id. at p. 1590.)
In the instant case, it is unclear from the record how much time had elapsed between the incident and Does statements to Mangarin and Annette. In any event, the lapse of time between the event and the statements is not dispositive " ` "if it nevertheless appears that [the statements] were made under the stress of excitement and while the reflective powers were still in abeyance." [Citations.]" (People v. Brown (2003) 31 Cal.4th 518, 541.) Rather, " `[t]he crucial element in determining whether a declaration is sufficiently reliable to be admissible under [the spontaneous declaration] 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. . . . [Citations.]" (Ibid.) Here, as in Saracoglu, the facts available to the trial court amply support the conclusion that Doe continued to labor mightily under the emotional influence of the disturbing events she perceived, so much that she remained terrified, shaking and gasping for breath as she recounted the events to Mangarin and Annette.
3. Does Statements Did Not Violate the Confrontation Clause
Having determined Does statements were admissible under state law, we now turn to defendants claim their introduction violated his right to confront witnesses against him as interpreted in Crawford.
Under Crawford, the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 59.) The statements at issue in Crawford were clearly testimonial, having been made and recorded during a formal police interrogation. (Id. at pp. 52-53.) Consequently, the court had no occasion to refine the term "testimonial." (Id. at p. 68.) The court did, however, distinguish "testimony" from casual conversation, limiting the former to " `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.]" (Id. at p. 51.)
In Davis v. Washington (2006) 547 U.S. ___ (Davis), the high court further explored the dichotomy between testimonial and nontestimonial statements. Under Davis, "[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." (Id. at pp. 2273-2274, fn. omitted.)
In Davis, the declarant called 911 and told the dispatcher her former boyfriend was hitting her. (Id. at pp. 2270-2271.) In response to the dispatchers questions, the declarant provided the defendants name, the nature of the abuse and where it was occurring. (Id. at p. 2271.) In the course of the call, the declarant also informed the dispatcher that the defendant had just run out the door and was leaving in a car. (Ibid.) When the declarant did not appear at trial, the tape of the 911 call was played for the jury. (Ibid.)
Recognizing that the inquiries of a police operator in the course of a 911 call are "in one sense" a police interrogation (Davis, supra, 126 S.Ct. at p. 2274), the court nonetheless found that admission of the 911 tape in Davis did not constitute a Sixth Amendment violation (id. at pp. 2273-2274). In so holding, the court explained that whether an individual was acting as a witness and in essence "testifying" should be determined by looking to the surrounding circumstances of when a statement is made, the nature of the statement given, the level of formality when making the statement, and the purpose of the statement. (Id. at pp. 2276-2277.) The court distinguished the objective circumstances of the Davis 911 call from those of the Crawford interview by noting that (1) the Davis call featured an account of events as they happened, rather than after the fact; (2) the call was placed not to provide an account of past events but to secure assistance (Davis, supra, 126 S.Ct. at p. 2276]; (3) the level of formality differed, with one interview in a calm police station and the other in the midst of a chaotic situation (id. at pp. 2276-2277); and (4) "the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operators effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon." (Davis, supra, 126 S.Ct. at p. 2276.)
The California Supreme Court in People v. Cage (2007) 40 Cal.4th 965, 972, 991 (Cage), provided its own analysis of testimonial statements when it analyzed a victims statements to a surgeon regarding the nature of his injuries. In finding the statements were nontestimonial, Cage held "the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial." (Id. at p. 984, fn. 14.) Cage "derive[d]" from Davis "several basic principles" for determining the testimonial character of a statement: "First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined `objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, 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, at p. 984, fns. omitted.)
Applying these factors to the instant case, we conclude Does statements to Mangarin at the hospital and her subsequent statements to Annette were nontestimonial in nature. To begin with, the purpose and form of the statements were not the functional equivalents of trial testimony. Before speaking to Mangarin, Doe asked her whether she could keep a "secret" that was about a matter of life and death. After getting Mangarins assurance, Doe spoke with her in the womens restroom and showed her various bruises on her body. During this conversation, Doe was crying. There was nothing formal, solemn or structured about this discourse.
At one point during this conversation, Mangarin suggested that Doe should get her injuries "documented." Despite the fact that Does injuries were "documented," it does not appear that Does primary purpose in speaking with Mangarin was to establish past facts for use in a criminal trial. As evidenced by her request to Mangarin to keep a "secret," the last thing Doe thought she was doing was "testifying." Rather, she was confiding in a friend about the beating she had suffered at the hands of defendant.
We reach the same conclusion with respect to the statements Doe made to Annette. When Doe spoke with Annette, she was wide-eyed, terrified, and gasping for breath. Annette asked Doe questions about the incident to understand the basis for Does terrified state, not to prepare for trial. Moreover, Does statements to Annette were not confined to past events, as Doe expressed great concern over the possibility that defendant would harm her brother in the future. The interaction between Doe and Annette bears no resemblance to the "formality and solemnity characteristic of testimony." (Cage, supra, 40 Cal.4th at p. 984, fn. omitted.)
Defendant cites to two pre-Davis cases to assert that hearsay statements to private persons may be testimonial for purposes of the confrontation clause. Neither alters our analysis.
In People v. Cervantes (2004) 118 Cal.App.4th 162, a defendant gave a detailed statement to a neighbor, who was both a nurse and his longtime friend, while the defendant was seeking medical treatment from her for injuries sustained during the crime (id. at pp. 166-167, 169-170). Before concluding that the statement was not testimonial, the appellate court opined that the defendants statement "was testimonial, if at all, only under the definition quoted [by the Crawford court] from the amici curiae brief filed by the National Association of Criminal Defense Lawyers et al., which asserted testimonial statements include those ` "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . ." [Citation.]" (Id. at pp. 173-174.) The court found that even under this definition of "testimonial," the statement had not been made with any reasonable expectation it would be used at a later trial. (Id. at p. 174.) However, even before Davis and Cage, the foreseeability test articulated in Cervantes was criticized as unsound. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1224.)
In People v. Sisavath (2004) 118 Cal.App.4th 1396 (Sisavath), the court applied a slightly different test for determining whether a statement was testimonial. There, a " `forensic interview specialist " (id. at p. 1402) from a countys multidisciplinary center interviewed a four-year-old suspected sexual abuse victim (id. at pp. 1399-1400). The interview took place after the defendant had been charged; the prosecutor and the district attorneys investigator were also present at the interview. (Id. at p. 1401.) When the victim was adjudged incompetent to testify, the investigator was allowed to testify. (Id. at p. 1400.) In reviewing the testimonial nature of the statement, the court noted the pertinent question was "whether an objective observer would reasonably expect the statement to be available for use in a prosecution." (Id. at pp. 1402-1403.) The Sisavath test is inexplicably focused on a hypothetical observer rather than the declarant and the listener. (See Simons, Cal. Evidence Manual (2007) Hearsay Evidence, § 2:114, p. 197.)
In any event, Cage notes that "the statement at issue in Sisavath might well be considered testimonial even under the more recent formulation. It was made in a formal setting, after criminal proceedings had commenced. It was elicited by a trained interviewer, in the presence of law enforcement personnel, with the manifest object of obtaining criminal evidence." (Cage, supra, 40 Cal.4th at p. 989.) Nothing in Sisavath suggests that the private conversations Doe had with Mangarin and Annette produced testimonial statements.
Again, Cage is instructive. Disagreeing with the reasoning that any statement about criminal events, made outside the context of an ongoing emergency, is testimonial, our Supreme Court explained: "In our view, neither Crawford nor Davis made testimonial, and thus inadmissible as hearsay, all statements, other than emergency statements, that might reasonably be available for use in a criminal trial. To the extent they describe criminal events, `casual remark[s] to an acquaintance, . . . might be so used if otherwise admissible. (Crawford, supra, 541 U.S. at p. 51.) Yet Crawford itself strongly signaled that such casual remarks, made without the `solemn[ity] and `purpose characteristic of `testimony, are not the concern of the confrontation clause. (Crawford, supra, 541 U.S. 36, 51.) And if Crawford left any doubt on the subject, Davis laid it to rest. There, the court made clear that, where statements to law enforcement officials are at issue, testimonial `solemn[ity] and `purpose are essential. No more stringent rule should apply to statements made to persons who are not law enforcement agents, and outside the context of a criminal investigation." (Cage, supra, 40 Cal.4th at p. 991, fn. omitted.) Even before Cage, the California Supreme Court concluded that a statement made by a murder victim to a friend at school shortly before the homicide, in which the victim expressed concern that the defendant would attempt to molest her later that day, was not testimonial for purposes of the confrontation clause. (People v. Griffin (2004) 33 Cal.4th 536, 579-580, fn. 19.)
We therefore conclude that Does statements to her coworker and minister about defendants conduct were not testimonial.
4. The Trial Court Properly Denied Defendants Motion for Mistrial
Defendant contends the admission of Annettes testimony that defendant told Doe he would kill her brother and his children constituted grounds for a mistrial because this testimony was inadmissible, testimonial hearsay. He further claims the prosecutor committed misconduct by eliciting this testimony in violation of in limine ruling. These contentions are without merit.
First, as discussed (see pt. III.A.2., 3., ante), the admission of Annettes testimony violated neither the hearsay rule nor defendants confrontation rights. Second, there is no indication of prosecutorial misconduct. It is true that the trial court was initially concerned that this testimony exceeded the scope of its in limine ruling. However, once the court clarified that these statements were made as part of Does spontaneous declaration, it was satisfied that Annettes testimony fell within its original Evidence Code section 1240 ruling. We agree and conclude the trial court did not err in denying defendants motion for mistrial.
B. Pretext Call
Over defendants objection, the trial court admitted into evidence and allowed the prosecutor to play for the jury the entire pretext call in which Doe asked defendant to explain "[w]hy . . . [he] hit" her. Defendant contends this evidence was inadmissible hearsay and that its introduction violated his confrontation rights under Crawford. He further complains that the trial court erred in failing to redact the pretext call, which he claims was replete with highly inflammatory hearsay accusations. We disagree because the statements were nontestimonial and not offered for a hearsay purpose. We further find the evidence was properly admitted without any redaction.
1. Background
At the police station, Doe made a telephone call to defendant. During the call, defendant asked Doe where was she calling from, so she told him she was calling from her cousins house. When defendant asked why Doe was at her cousins house, Doe responded, "Because you hit me and you tried to shoot me." Following this response, defendant hung up the phone. When Doe called back, defendant said, "Say that one more time, dont come home." As Doe tried to speak, defendant again hung up the phone. Doe placed another call to defendant. During this conversation, defendant accused Doe of lying about how long it took to get an "EKG" at the hospital. Doe then said, "Why did you hit me? Why did you hit me? I didnt do anything to you." Again, defendant hung up the phone. Doe called back and told defendant, "Promise me that youre not gonna hit me anymore." Defendant responded, "I swear to God."
Later, Doe repeated "promise me youre not gonna hit me." This time defendant said, "Hey, what are you saying, you woman." When Doe said she was telling truth, defendant accused her of telling lies and said, "EKG is five minutes, you took three hours . . . ." Doe then said, "You hit me, blood was coming out. I went to the clinic" and defendant responded, "Three hours." Doe stated, "I didnt do anything, I didnt come and do anything yesterday. You showed [me] the gun and shoved me." Again, defendant did not respond, but accused Doe of taking too long at the hospital and running away from home. Doe replied, "You were hitting, wouldnt I run," whereupon defendant stated, "Are you a fugitive? Its natural shit. Joti number 2 you are." Doe then said, "You hit me so much" and defendant responded "OK." When Doe said, "I took a lot of punches in my face," defendant replied, "Why do you talk in English? Was your dad a white man?" Doe repeated, "you punched me in my face," whereupon defendant stated, "All right I was angry."
Defendant continued to accuse Doe of lying to him and stated, "That is why God showed you this." Doe then stated, "You are the one who hit, what has God to do with it," whereupon defendant replied, "God is the one." When Doe asked defendant to "throw away the gun," stating that she felt "scared," defendant responded, "Better to throw you." Doe then said, "I dont think you [s]hould point [a] gun at me anytime. . . . I thought I was going to die." Defendants only response was to utter Does name.
When defendant asked Doe to "start anew," she replied, "If I stay, promise you will not hit me." Defendant responded, "Nah. If you want, you can just stay there. Its cool with me." Doe then said, "I know you love me but then why do you hit me," and defendant responded with "Hmmm?" Doe again asked defendant, "Why did you do this" and he replied, "Huh?" Doe repeated, "Why do you do this? You kept on beating me, I could die," whereupon defendant replied, "You are asking me? You are an expert in running away." Doe then said, "Look. Im willing to stay with you all life, but you will scare me with a gun. You say will shoot and punch." Defendant responded, "Say I will throw you from the bridge. I did not do anything."
Doe then said, "What kind of a lover are you, you were about to kill me today," whereupon defendant replied, "Yeah, speak." When Doe asked defendant to pick her up from her cousins house, he replied, "You can play now, but there is a lot of game remaining. In the long run, I will make you play a lot." When Doe asked what defendant meant by "playing," he responded, "Will beat you again. Not today. One month later." Doe stated, "[E]very time you hit me that really, really hurts me and it scares me . . . , but what you did yesterday was just over the limit," whereupon defendant replied, "Chattering in English. Were your father and mother white?" Doe again told defendant, "[W]hat you did yesterday, is over the limit. Showed me a gun. Came back to press the trigger." Defendant then stated, "Okay? You can talk a lot. . . . Joti is smarter than you. She did not say anything on the phone."
Doe stated, "You kept punching me and I never hit you back once," whereupon defendant replied, "You dont deserve respect. The very bad thing that I did. I tried to forget this." Doe then asked defendant about using liquor, and he responded, "The liquor was to drink and beat you." Defendant then complained that Doe had brought trouble to him and his whole family. Doe replied, "You showed me the gun, you hit me. I say I love you and you show me the gun. What kind of a man are you to do this. I have done nothing wrong to you. Right from the beginning you have been hitting me, hitting me. Now you even show me the gun." Defendant then told Doe, "There is nothing in your heart." Defendant continued to berate Doe, telling her to "[s]hut the fuck up," and stating "[s]till got your bootie stuck . . . put a flashlight up your ass the way you talk." Defendant further stated, "I feel like taking a knife and killing you. Then you will understand what it is."
Doe continued to talk about the beating, stating, "Yesterday you punched me, what if [my jaw] broke" and informing defendant that she was still in pain and unable to eat, whereupon defendant replied, "OK thats fine." Doe further stated that she still was having difficulty breathing and that she thought it was due to the gun, to which defendant responded, "Forget the gun put it in the pussy, talking too much." When Doe asked defendant to look at the round marks left by the gun, he said, "So? So? I cried, I asked for forgiveness. I tried." Doe told defendant that he was unable to kill her because Jesus had saved her, and she further stated that she had "never been beaten so badly like this in [her] life." Defendant replied, "What happened?" Doe repeated, "The way you hit me, no [one hit me] like this in my life," and she added "Did you do that to your ex-wife too," whereupon defendant hung up the phone.
Over defense objection, the court found the conversation qualified as a party admission, which did not implicate Crawford as the relevant statements were those attributed to defendant. The court further found that redaction was not necessary, as there was no reference to anything inflammatory or prejudicial other than the alleged events, which were relevant to the context of the statements.
2. The Statements in the Pretext Call Were Party and Adoptive Admissions; No Crawford Error
The pretext call contained statements of defendant and numerous accusatory statements made to defendant. Defendants own statements were admissible against him as an admission by a party under Evidence Code section 1220. "The exception to the hearsay rule for statements of a party is sometimes referred to as the exception for admissions of a party. However, Evidence Code section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions. [Citations.]" (People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5, italics omitted.) Moreover, Does accusatory statements were separately admissible against defendant as adoptive admissions. Evidence Code section 1221, the adoptive admissions exception, "generally permits hearsay to be admitted against a party, when that party has adopted it or agreed that a statement, originally made by someone else, is true. The statute contemplates either explicit acceptance of anothers statement or acquiescence in its truth by silence, equivocal or evasive conduct." (People v. Castille (2005) 129 Cal.App.4th 863, 876, fn. omitted.)
Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . ."
Evidence Code section 1221 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth."
There are two requirements to satisfy the hearsay exception for adoptive admissions: the party must (1) have had knowledge of the content of the declarants statement, and (2) with such knowledge, have used words or conduct indicating his or her adoption of, or his or her belief in, the truth of such hearsay statement. (People v. Combs (2004) 34 Cal.4th 821, 843; see Evid. Code, § 1221.) The trial court may admit the proffered evidence of an adoptive admission if the evidence supports a reasonable inference that these preliminary facts exist and then the jury must determine whether an adoptive admission was actually made. (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
Here, in the face of Does numerous statements that defendant had tried to kill her, and that he hit, punched, and beat her, defendant responded with silence, equivocation, and threats of violence. Defendant argues that the adoptive admissions exception to the hearsay rule does not apply here because there were so many accusations lodged against him by Doe that it would have been unfair for him to deny them all. This contention is without merit. The theory underlying the adoptive admission exception is that "the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial" (People v. Simmons (1946) 28 Cal.2d 699, 712), and if the accused fails to act as an innocent person would be expected to in the face of an accusation, an inference of consciousness of guilt may properly be drawn therefrom (People v. Green (1952) 111 Cal.App.2d 794, 798). Thus, the number of accusations is immaterial because the natural reaction of an innocent person would be to deny the accusations whether there be one or 100 such accusations. By failing to deny Does accusations, defendant impliedly admitted the truth of her statements and adopted those statements as his own.
Defendant further contends that the adoptive admissions exception is inapplicable here because Doe acted as a police agent in soliciting his responses. People v. Silva (1988) 45 Cal.3d 604, 624, upon which defendant relies, does not alter our conclusion that defendant adopted Does statements as his own. In Silva, our Supreme Court merely noted: " `[A] typical example of an adoptive admission is the accusatory statement to a criminal defendant made by a person other than a police officer . . . . " (Id. at pp. 623-624, italics omitted.) Nothing in Silva can be read as prohibiting an adoptive admission from being made in the presence of a police officer. In fact, adoptive admissions have been held admissible even where they are the product of a joint police interrogation of codefendants. (See People v. Combs, supra, 34 Cal.4th at pp. 842-843; People v. Castille, supra, 129 Cal.App.4th at pp. 866, 877-878.) Here, defendant was not in police custody and was unaware that the police were recording the conversation, when he responded to the accusations made by Doe. There was simply no danger that his silence or equivocation could be construed as an assertion of his right against self-incrimination rather than as an adoptive admission. (See People v. Jennings (2003) 112 Cal.App.4th 459, 472-473 & fn. 2.)
Finally, the introduction of an adoptive admission does not violate Crawford, as an adoptive admission is not offered for the truth of the matter asserted. (See People v. Combs, supra, 34 Cal.4th at pp. 842-843.) Rather, it is admitted to supply meaning to the defendants conduct or silence in the face of the declarants accusatory statements. (Ibid.) "[B]y reason of the adoptive admissions rule, once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions, and are admissible on that basis as a well-recognized exception to the hearsay rule. [Citation.] Being deemed the defendants own admissions, we are no longer concerned with the veracity or credibility of the original declarant. Accordingly, no confrontation right is impinged when those statements are admitted as adoptive admissions without providing for cross-examination of the declarant." (People v. Silva, supra, 45 Cal.3d at p. 624, italics omitted; see also People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25 [admission of adoptive admissions does not violate Crawford]).
We conclude Does statements were properly admitted for a nonhearsay purpose, "to supply meaning to defendants conduct or silence in the face of [Does] accusatory statements," and thus did not implicate the Sixth Amendment. (People v. Combs, supra, 34 Cal.4th at p. 842.)
3. The Pretext Call Was Properly Admitted Without Redaction
Defendant contends the trial court erred in failing to redact the pretext call. Defendant, however, does not identify the particular statements he contends should be redacted. Rather, he claims that Does repeated accusations throughout the call were bound to inflame and prejudice the jury whether or not he denied such accusations. We disagree.
In admitting the pretext call in its entirety, the trial court ruled that its probative value outweighed any potential prejudice and that Does statements were not admitted for the truth of the matter asserted but to provide context for defendants admissions.
The trial court did not abuse its discretion in admitting the pretext call in its unredacted form. As discussed (see pt. III.B.2., ante), Does statements were relevant to the nonhearsay purpose of supplying meaning to defendants silence and equivocation in the face of her accusations. Redacting Does statements would have substantially undercut the probative value of defendants admissions. Moreover, Does statements in the pretext call were no more inflammatory than the numerous photographs of Does injuries that were admitted into evidence, or her statements to Mangarin and Annette, which we have already concluded were properly admitted as spontaneous statements (see pt. III.A.2., ante). Finally, before admitting the pretext call, the trial court admonished the jury that Does statements were not admitted for the truth of the matter asserted, but "received only for the limited purpose of showing the context" of defendants responses. Defendant was free to challenge this evidence, and did so, arguing that Does statements were those of "an emotionally disturbed woman," who refused to testify and recanted her accusations. Inasmuch as Does statements were essential to provide context for defendants admissions, the court did not abuse its discretion in admitting the pretext call without redaction.
We have reviewed the photographs of Does injuries, which we requested be transmitted to our court. (Cal. Rules of Court, rule 8.761(a).)
C. Evidence Code Section 1109
Defendant contends the trial court committed prejudicial error by admitting the testimony of his former wife under Evidence Code section 1109, which permits a jury, subject to Evidence Code section 352, to consider prior incidents of domestic violence for purposes of showing a defendants propensity for such conduct. Defendant contends that admission of prior acts of domestic violence violated his federal constitutional rights to due process and equal protection of the law because the evidence allowed the jury to find him guilty of the charged offense based on past conduct and disposition toward domestic violence. He further claims that the trial court should have excluded this evidence under Evidence Code section 352.
1. Background
Before trial, the prosecutor filed an in limine motion seeking to admit the testimony of defendants former wife, Joti, under Evidence Code section 1109. Defendant opposed the motion on the grounds that Jotis testimony was more prejudicial than probative and therefore excluded under Evidence Code section 352. The trial court granted the motion but limited the scope of Jotis testimony to the events that resulted in defendants conviction of infliction of corporal injury in 2003 (§ 273.5), and a subsequent probation violation.
At trial, Joti described an incident in 2003, in which she sustained bruising and swelling after defendant slapped, punched, and kicked her. She also said that defendant had violated a restraining order that she had obtained after this incident.
During cross-examination, Joti testified that she had never slapped defendant or otherwise initiated a fight with him. To impeach this testimony, defendant sought to introduce a video made shortly before the couple separated, which depicted Joti hitting and slapping defendant. The court advised defendant that it would allow the introduction of the video, but its admission would open the door for Joti to testify about other acts of domestic violence that had occurred during their marriage.
After the video was shown, Joti testified that defendant had been continuously violent during their marriage; he verbally abused her on a daily basis, and physically abused her every week. Defendant would then blame her for the abuse. Joti further testified that defendant had threatened that if she left him, he would kill her, "blow [her] away," throw her to the dogs, and throw her in the river. Joti explained that defendant made the video after drugging her. Defendant told Joti that he planned to use the video in court "if he [is ever] in trouble." According to Joti, defendant "used drugs 24/7."
2. The Trial Court Properly Admitted Evidence of Defendants Prior Acts of Domestic Violence
As an initial matter, defendant forfeited his constitutional challenges to the admission of the evidence by failing to object at trial. (People v. Raley (1992) 2 Cal.4th 870, 892.) Although defendant objected on Evidence Code section 352 grounds, he did not raise any constitutional challenges below. Defendant cites to various authority recognizing that reviewing courts have discretion to consider issues that were not raised at trial. (See, e.g., People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; see also § 1469.) Relying upon this authority, he urges us to consider the merits of the issue.
That a court may exercise its discretion and consider an issue not raised below does not mean that such consideration is required. Indeed, the United States Supreme Court has stated: " `No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, `may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731; see also People v. Saunders (1993) 5 Cal.4th 580, 590.)
Notwithstanding defendants forfeiture, his constitutional claims fail on the merits. We have previously considered and rejected due process challenges to Evidence Code section 1109, as have numerous other appellate courts. (People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 (Jennings); People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028; People v. Johnson (2000) 77 Cal.App.4th 410, 417.) We need not revisit this question. Because the trial courts discretion to exclude propensity evidence under Evidence Code section 352 provides an adequate safeguard, admission of prior acts of domestic violence does not facially violate the due process clause. (See People v. Falsetta (1999) 21 Cal.4th 903, 916-918 [construing Evid. Code, § 1108 providing similar exception for admission of prior sexual offenses]; People v. Hoover, supra, 77 Cal.App.4th at p. 1028.)
Defendants equal protection challenge to Evidence Code section 1109 is also without merit. Although defendant claims section 1109 violates his right to equal protection of the laws by treating defendants accused of domestic violence differently from those accused of other crimes, his argument has already been rejected. In Jennings, supra, 81 Cal.App.4th 1301, the court reasoned that "[b]ecause section 1109 does not implicate these constitutional rights [to due process, a fair trial, or conviction by proof beyond a reasonable doubt], the statute will satisfy constitutional equal protection requirements if it simply bears a rational relationship to a legitimate state purpose. [Citations.]" (Id. at p. 1312, fn. omitted; see also People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 [concerning Evid. Code, § 1108].)
Applying the rational basis test, Jennings decided that "domestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in both domestic violence and sexual abuse cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general. Although all criminal trials are credibility contests to some extent, this is unusually—even inevitably—so in domestic and sexual abuse cases, specifically with respect to the issue of victim credibility. The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses in permitting the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused. The facts that other crimes such as murder and mayhem may be more serious and that credibility contests are not confined to domestic violence cases do not demonstrate the absence of the required rational basis for the Legislatures distinction between these crimes." (Jennings, supra, 81 Cal.App.4th at p. 1313; see also People v. Johnson, supra, 77 Cal.App.4th at p. 419 [discussing Evid. Code, § 1109 legislative history].) We agree with Jennings and reject defendants equal protection challenge to Evidence Code section 1109.
Finally, we reject defendants claim that the trial court should have excluded the evidence under Evidence Code section 352. Evidence Code "[s]ection 1109 conditions the introduction of prior domestic violence evidence on an evaluation under section 352 of whether the evidence is more probative than prejudicial. A careful weighing of prejudice against probative value under that section is essential to protect a defendants due process right to a fundamentally fair trial. [Citations.]" (Jennings, supra, 81 Cal.App.4th at pp. 1313-1314.)
"Under [Evidence Code] section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial courts exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] `The [trial] courts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. [Citation.]" (Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)
Applying these rules, we conclude the trial court did not abuse its discretion in admitting evidence of defendants prior acts of domestic violence. The court initially limited Jotis testimony to two incidents, the 2003 domestic violence conviction and subsequent probation violation. However, the court allowed the introduction of additional incidents after defendant introduced the video of Joti purportedly attacking defendant. Defendant complains that this additional evidence "morphed into a mini-trial," requiring the jury to determine whether the video had been staged and to assess Jotis credibility. He further insists that "[t]he prejudicial effect of the evidence, which went far beyond that which the trial court initially ruled admissible, substantially outweighed its probative value, and was likely to confuse the issues."
It is true that the evidence that defendant had beaten his former spouse on a regular basis was damaging to his defense. However, " `[p]rejudice as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponents position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption `"substantially outweigh" the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609 . . . .) ` "The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, `prejudicial is not synonymous with `damaging. "[Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638 . . . .)" (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008, italics omitted.)
"The prejudice that [Evidence Code] section 352 `"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of `prejudging a person or cause on the basis of extraneous factors. [Citation.]" [Citation.] (People v. Zapien (1993) 4 Cal.4th 929, 958 . . . .) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1009.)
Here, although Jotis testimony may have been damaging, its probative value in establishing defendants propensity to commit acts of domestic violence was substantial. Moreover, the evidence was presented in a relatively straightforward manner, which was not likely to confuse the jury. Finally, Jotis testimony was less inflammatory than the evidence about the charged offenses.
In conclusion, the trial court did not err in admitting evidence of defendants prior acts of domestic violence.
D. Multiple Corporal Injury Convictions
As noted above, defendant was convicted of two counts (counts 4 & 6) of corporal injury upon a cohabitant (§ 273.5) arising from the October 2005 incident. The trial court imposed separate, concurrent sentences on each count. Defendant argues that he cannot be convicted of two violations of section 273.5 because he committed the offenses as part of a continuous course of conduct. Alternately, he claims it was error under section 654 for the trial court to impose separate, concurrent sentences on these counts.
"Section 954 generally permits multiple convictions: `An accusatory pleading may charge . . . different statements of the same offense and `the defendant may be convicted of any number of the offenses charged. The issue must be distinguished from the closely related question of whether a defendant may receive multiple punishment based upon a single act or course of conduct. [Citations.]" (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474 (Johnson).) "Section 654 `protects against multiple punishment, not multiple conviction. [Citation.] [Citation.]" (People v. Palacios (2007) 41 Cal.4th 720, 727.) "The Supreme Court has recognized the tension between section 954 and section 654. The solution adopted, in general, is `to permit multiple convictions on counts that arise from a single act or course of conduct—but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions. [Citation.]" (Johnson, supra, 150 Cal.App.4th at p. 1474, italics added.) " ` "The divisibility of a course of conduct depends upon the intent and objective of the defendant. . . . [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." [Citations.] [Citation.]" (People v. Nubla (1999) 74 Cal.App.4th 719, 730 (Nubla).)
Applying these principles, we conclude that defendant was properly convicted of and punished for multiple acts of corporal injury upon a cohabitant. Here, it appears the incident was a continuous attack on Doe by defendant. However, the record discloses that defendant beat Doe and then pressed the gun against her chest. Johnson, supra, 150 Cal.App.4th 1467, although not cited by either party, is particularly instructive. There, as here, the defendant argued that he could not be convicted of multiple violations of section 273.5 for a single incident. (Id. at p. 1471.) Rejecting this contention, the court held that "where multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5." (Id. at p. 1477.) Applying the substantial evidence standard of review, the court concluded there was sufficient evidence to support the three convictions of section 273.5. (Ibid.)
Here, as in Johnson, defendant indisputably committed successive acts of violence against Doe. (Johnson, supra, 150 Cal.App.4th at p. 1477.) We know that defendant beat her about the face and head, beat her on her arms and legs, and pressed the gun against her chest. As a result, Doe suffered bruises to her legs, arms, and chest; Does face was also red and swollen. From this evidence, the jury could have concluded that defendant completed one violation of section 273.5 when he beat Doe about her face and head and on her arms and legs, causing multiple bruising and swelling on her body, and another when he pressed the gun against her chest, leaving a red mark. Accordingly, the evidence is sufficient to support the two convictions of section 273.5.
Johnson, however, is not completely dispositive of the issues on appeal, as it does not address the application of section 654. There, unlike here, the defendant received punishment for only one of his offenses. (Johnson, supra, 150 Cal.App.4th at pp. 1473-1474.) This distinction, however, does not compel us to alter our conclusion that defendant was properly punished for both of the corporal injury convictions.
We find support for our conclusion in Nubla, supra, 74 Cal.App.4th 719, another case overlooked by the parties. There, the defendant committed several acts of violence against his wife—bloodying her nose by pushing her onto the bed, putting a gun to the back of her head, and putting a gun in her mouth. (Id. at p. 730.) The court held it was not error to impose multiple sentences for assault with a deadly weapon and corporal injury on a spouse, reasoning that the offenses were "somewhat analogous to sex offenses in that several similar but separate assaults occurred over a period of time." (Ibid.) Significantly, "each sexual assault may be viewed as a separately punishable criminal act, notwithstanding that all the offenses arguably were done to obtain sexual gratification" (ibid.), because " ` "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental" to any other [Citation.] " (Id. at p. 731, quoting People v. Harrison (1989) 48 Cal.3d 321, 336 [separate punishment proper where defendant digitally penetrated victim three separate times during sexual assault].) Nubla explained " `that . . . a "broad and amorphous" view of the single "intent" or "objective" needed to trigger [section 654] would impermissibly "reward the defendant who has the greater criminal ambition with a lesser punishment." [Citation.] Rather, in keeping with the statutes purpose, the proper view [is] to recognize that a "defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." (People v. Harrison[, supra,] 48 Cal.3d [at pp.] 335-336 . . . .)" (Nubla, supra, 74 Cal.App.4th at pp. 730-731.) Nubla held the same analysis supported the trial courts ruling in the assault case before it. (Id. at p. 731.) There, the defendants "act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense and was not incidental to that offense. The trial court was entitled to conclude that each act was separate for purposes of . . . section 654." (Ibid.; see also People v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [defendant could be punished for two assaults, where he fired three shots at police officer while fleeing in stolen taxicab; first shot separated by almost a minute from the second two]; People v. Jenkins (1987) 196 Cal.App.3d 394, 405 [section 654 did not preclude punishment for two shootings, one in connection with robbery and another immediately following it; second shot was gratuitous act of violence], disapproved on another ground in People v. Brown (1993) 6 Cal.4th 322, 336, fn. 12.)
Here, too, in keeping with the purpose of section 654 to ensure that punishment is commensurate with a defendants criminal culpability, the trial court was entitled to conclude that each crime was separate, was not committed as a means of committing and facilitating any other and was not incidental to any other. As the prosecutor pointed out during closing arguments, count 4 occurred when defendant pushed the gun against Does body, causing bruising on her chest. Count 6 occurred as defendant beat Doe, which caused all the other bruises on her body. Although defendant had the same intent of inflicting injury in both counts, he embarked upon a different course of conduct when he personally used the gun to inflict injury to Does chest. Substantial evidence supports the trial courts implied finding that defendant entertained separate criminal objectives when he pressed the gun against Does chest (count 4) and then beat her about her face and head, and on her arms and legs (count 6). (Nubla, supra, 74 Cal.App.4th at pp. 730-731.)
Section 654 does not "reward" a defendant for committing acts of gratuitous violence. (Nubla, supra, 74 Cal.App.4th at pp. 730-731.) In this case, each offense was intended to achieve greater criminal gratification and was not intended to facilitate the other. (Ibid.) The trial court did not err by imposing concurrent sentences on counts 4 and 6.
IV. DISPOSITION
The judgment is affirmed.
We concur:
SEPULVEDA, J.
RIVERA, J.