People v. Byron

170 Cal.App.4th 657

88 Cal. Rptr. 3d 386

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EARL BYRON, JR., Defendant and Appellant.

No. B188868.

Court of Appeals of California, Second District, Division Three.

January 23, 2009.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Adrian N. Tigmo and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

KLEIN, P. J.

Defendant and appellant, Michael Earl Byron, Jr., appeals the judgment entered following his conviction, by jury trial, for domestic violence with a great bodily injury enhancement (Pen. Code, §§ 273.5, 12022.7).¹ Sentenced to state prison for six years, Byron claims there was trial error.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103]), the evidence established the following.

1. Prosecution evidence.

On July 27, 2003, Christine Sowers called 911 and told the operator she had just been assaulted by her boyfriend, defendant Mike Byron. She said Byron came over to her apartment and demanded money. A fight ensued, during which Byron bit her cheek, tried to choke her, and punched her in the back. A tape recording of Sowers's 911 call was played for the jury:

"[Emergency Operator] 911. State your emergency.

"[Sowers] Hi. I—I—I can't breathe right now. My boyfriend . . . came . . . here and was demanding money from me and he punched me in the back really, really hard and I—I can't breathe. I don't know if he . . . punctured my lung . . . but I can't breathe, and it's hard for me to breathe."

"[Emergency Operator] Any other injuries besides the back?

"[Sowers] No, no. Just he bit my—my cheek. I didn't—I can't—I can't feel * * *

"[Emergency Operator] Okay. Did he—did he hit you with any weapons?

"[Sowers] No. Just he tried to choke me with his hands."

Deputy Sheriff Robert Wilkinson went to Sowers's apartment in response to the 911 call. When he arrived, an ambulance and paramedics were already present and Sowers was on a gurney waiting to be taken to the hospital. Wilkinson testified he spoke to Sowers "briefly just to get a brief description of the suspect. And so we can put out a crime broadcast to have other units search the area for him." The following colloquy occurred:

"Q. And what was her condition when you spoke to her at that time?

"A. She was complaining of extreme pain to her back, and she was crying. She was very hysterical.

"Q. And what description did she give you of the person who had done this to her?

"A. She . . . named the suspect as Michael Byron. Said it was a boyfriend or previous boyfriend of hers. She described him as five-eight, 160-odd pounds. Said that he drives a black Camaro.

"Q. And did you relay that so that a crime broadcast was initiated?

"A. Yes, we did. I placed the crime broadcast over the radio to the other units."

Wilkinson subsequently had a second conversation with Sowers at the hospital. She told him she and Byron had been living together, but they had broken up two weeks before and he moved out. That day he showed up, banged on her door and demanded money. She refused and told him to leave. He kicked the door in and attacked her. He put his hands around her throat, choked her and said, "I could kill you right now." When he released the pressure, she spat in his face and he bit her cheek. Sowers grabbed her purse and sat on the floor, trying to keep the purse away from Byron. He punched her in the back and left the apartment. Sowers could not catch her breath. She sat on the floor for 10 minutes before calling 911, afraid her ribs were broken.

Michael Bernards is Sowers's brother. He testified she called him on the afternoon of July 27, 2003, to say Byron had beaten her up and that she was in the hospital. Michael and his brother Jeff went to Sowers's apartment. Her front door appeared to have been kicked in and they had to nail it back into the doorframe.

Douglas Nale, a deputy sheriff, testified that on August 9, 2003, he discovered Byron's empty car in a parking lot. He then saw Sowers pull up in a Jeep and Byron get out of the passenger seat. After Byron got into his own car and started off, Nale stopped him. Sowers pleaded with Nale not to arrest Byron, saying she did not want to press charges.

On August 11, 2003, Sowers gave police a videotaped statement. She said Byron had not damaged her door on the day of the assault. She falsely told the responding officers he had broken in because she did not want them to think she was stupid for voluntarily opening the door. Actually, Byron had damaged the front door on an earlier occasion. When Byron came over on the day of the assault, he wanted $50 for groceries. Sowers refused, Byron got upset, and they started fighting. He choked her. Sowers grabbed her purse and lay down on the kitchen floor in a fetal position. While she was on the floor, Byron "punched [her] as hard as he could." She called 911 because she was having trouble breathing. At the hospital, she was treated for five cracked ribs and a punctured lung. Byron had been violent with her in the past, taking her by the throat and pushing her up against a wall. There had also been several fights during which they exchanged punches.

On September 4, 2003, Sowers testified at Byron's preliminary hearing. Her testimony was read to the jury at Byron's trial. Sowers testified Byron was her ex-boyfriend. On July 27, 2003, he came to her apartment and asked her for grocery money. When she refused, he got very upset. Sowers was lying on a couch in the living room. Byron came over and sat on top of her. They yelled at each other. Byron put his hands around her throat and choked her. He said he wanted to kill her. After they fought for five or 10 minutes, he let go of her neck. Then he bit her on the cheek. When Byron got off her, Sowers ran into her bedroom and locked the door. After a while, she went into the kitchen. Byron was there, crying. Sowers grabbed her purse from a chair to prevent him from taking her money. They struggled. Sowers "leaned over like in a fetal position on the ground of the kitchen," and Byron punched her once in the ribs. Sowers testified: "I couldn't breathe. I was scared. I . . . had never felt like that before. I couldn't breathe."

"Q. What did the defendant do at that time?

"A. He got his cell phone and keys and left.

"Q. Did you call 911?

"A. Not right away because I didn't know what was wrong. I was hoping . . . it would go away, so I tried to lay down, and it wouldn't go away, and that is when I called them about 15 minutes later."

Sowers spent four days in the hospital where she was treated for "[f]ive cracked ribs and a punctured lung."

Byron did not present any evidence at trial.

2. Proceedings leading to this appeal.

This is the second appeal to be brought in this case.

Because Byron absconded on February 19, 2004, the third day of his trial, he was not present when, later that day, he was convicted and sentenced. Byron was subsequently picked up on a bench warrant. He appeared at a hearing on April 21, 2004, during which the trial court invited defense counsel to make a motion to vacate the judgment so Byron could file a new trial motion challenging the admission of Sowers's hearsay statements under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354], which had been decided on March 8, 2004.

On May 12, 2004, the trial court granted Byron's motion to vacate the judgment. The People appealed and, on March 28, 2005, this court reversed and remanded with directions for the trial court to reinstate the judgment and sentence. On June 9, 2005, the trial court reinstated the original judgment and sentence. On February 26, 2006, pursuant to an order from this court, Byron filed a belated notice of appeal from the reinstated judgment.

CONTENTIONS

1. The People contend Byron's appeal must be dismissed as untimely.

2. Byron contends his conviction must be reversed because Sowers's hearsay statements, accusing him of assaulting her, were improperly admitted.

DISCUSSION

1. We will construe Byron's untimely appeal as a habeas corpus petition.

The Attorney General contends, and in his supplemental letter brief Byron concedes, that the notice of appeal was untimely. Byron asks, however, that we treat his untimely notice of appeal as a habeas corpus petition. For reasons of judicial economy, we will do so.

An appeal in a criminal case is taken by filing a notice of appeal within 60 days after the rendition of judgment. (Cal. Rules of Court, rule 8.308(a).) "[T]he sole required procedural step of filing a notice of appeal is critical to rendering the appeal operative following a judgment of conviction. In general, a timely notice of appeal is `"essential to appellate jurisdiction." [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An untimely notice of appeal is "wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion." [Citation.]'" (In re Chavez (2003) 30 Cal.4th 643, 650 [134 Cal.Rptr.2d 54, 68 P.3d 347].)

The original judgment in this case was rendered on February 19, 2004. We agree with the parties that Byron's notice of appeal was untimely because it had not been filed by April 19, 2004, i.e., within 60 days of the judgment.²

It is true that, generally, "the right to appeal a previously vacated judgment cannot be curtailed or cut off retroactively by reinstatement of the judgment as a result of either a reversal on appeal or an order by the superior court."...