People v. Reneaux

50 Cal.App.5th 852

264 Cal.Rptr.3d 459

The PEOPLE, Plaintiff and Respondent,

v.Jessie RENEAUX, Defendant and Appellant.

C082186

Court of Appeal, Third District, California.

Filed June 17, 2020

SUMMARY OF THE APPEAL

HULL, Acting P. J.

A jury found defendant, Jessie Reneaux, guilty of inflicting corporal injury on his girlfriend, L.E., with whom he was cohabiting, guilty of false imprisonment of his girlfriend, and guilty of dissuading his girlfriend from testifying against him. He appeals arguing that: 1) the trial court violated his right to confront witnesses against him by allowing the girlfriend's out of court testimonial statements to be admitted into evidence; and, 2) the trial court abused its discretion when it imposed consecutive rather than concurrent terms.

We hold the defendant forfeited by his own wrongdoing his Sixth Amendment right to confront and cross-examine L.E. and we hold that the trial court did not abuse its discretion in sentencing the defendant to consecutive prison terms.

In supplemental briefing, defendant contends in light of the recent passage of Senate Bill No. 1393 (SB 1393), this matter must be remanded to permit the trial court to consider whether it should exercise its newly-legislated discretion to strike or dismiss the prior serious felony conviction enhancements imposed under Penal Code section 667, subdivision (a) - statutory section references that follow are to the Penal Code unless otherwise set forth. The People correctly agree.

We affirm the judgment of conviction but remand the matter to the trial court for the limited purpose of allowing the trial court to exercise its sentencing discretion under sections 1385 and 667, subdivision (a) to strike or dismiss the prior serious felony conviction enhancements.

FACTS

Defendant began living with his girlfriend L.E. in June 2015. Their landlord, Robert Clark, lived in a separate building on the same lot. From June to August, Clark grew concerned for E.’s safety because he would hear incidents of arguing, banging, shouting, "and stuff."

On August 13, Officer David Gonzalez responded to a call of vandalism at the property. While there, he spoke with E. She was crying and very emotional. Once she regained her composure, E. informed Gonzalez she and defendant had gotten into an argument while she was getting ready to go to work. He became very angry, threw things around the house, and punched a hole in the wall. As she went to get in her car to leave and go to work, defendant followed her and continued yelling at her. When she got in her car, he punched the windshield and cracked it, he punched the roof and dented it, and got into the car and damaged the ignition. She felt she was not able to leave. She told Gonzalez she was afraid for her life and did not want defendant to hurt her. She called friends to come help her and defendant left. Gonzalez's partner, Corporal Ramos, tried to start the car and it did not start.

About two weeks later, in the early morning of August 28, Clark again heard shouting and banging from defendant's apartment. His daughter called law enforcement to report the disturbance. Officer Hermosillo went to the apartment, knocked loudly on the door and announced himself, but no one answered. He had dispatch attempt to call the reporting party, but they were not able to reach her.

E. had arrived home around 3:00 a.m., and defendant was in the bedroom writing a letter. She walked into the bedroom and he yelled at her, "Fucking bitch. I fucking hate you." He got up, grabbed her, and pushed and pulled her around the apartment. Eventually, E. went into the bedroom, laid down, and cried. Later, when officers arrived at the apartment, defendant saw them through the window. He grabbed E., held her down, put his hand on her mouth, and told her to shut up. This is why she did not respond when Hermosillo knocked on the door. Defendant then punched holes in the wall, used a knife to cause additional damage, threw E.’s belongings out the window, and screwed the door closed. E. was afraid for her safety and felt trapped.

The next morning, Clark went to the apartment for a maintenance call. When he called and later knocked on the door, neither defendant nor E. answered. Clark was concerned, particularly in light of the disturbance the night before, and he called the police. Eventually, defendant and E. answered the door. Clark saw bruising on E. and asked defendant about damaging the apartment. Clark told the 911 dispatcher that when officers came out the night before, defendant prevented E. from answering the door, and she now had bruises on her arm. He stated she wanted to file a report and document the assault. He also told dispatch that defendant had walked off when he had been confronted about damage to the apartment. After the officers arrived, E. answered the door. She appeared in distress, had bruises on her arm, and reported her jaw was sore because defendant had been preventing her from allowing officers entry into the apartment.

Officer Hatcher was one of the officers who went to the property after Clark's call. Hatcher noticed E. had visible bruising on her arms and jaw line. She appeared scared, hesitant, and uncomfortable. Based on the events as E. reported them, and her statement that she was afraid for her safety, Hatcher helped her obtain an emergency protective order.

On September 2, 2015, E. reported to law enforcement that defendant had come to the house, trying to "make peace" before turning himself in. She reported they argued prior to him leaving.

Defendant was arrested on September 9, 2015.

On September 9, 2015 and again on January 9, 2016, defendant called E. from the jail. The pertinent details of those calls are set forth, post .

On September 22, 2015, E. requested a copy of the police report from August 28. Sometime within two weeks after defendant's arrest, E. called Hatcher and left a voicemail. When Hatcher spoke with E., E. stated she wanted to change the report and that what Hatcher had written down was not exactly what had happened. She did not elaborate further. Also on September 22, 2015, E. called the district attorney's office to say she had lied and was told to call the police.

E. refused to testify at trial.

LEGAL PROCEEDINGS

An information charged defendant with dissuading a witness (§ 136.1 - count 1); two counts of false imprisonment (§§ 236 & 237, subd. (a) - counts 2 & 4); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a) - count 3); and, vandalism (§ 594, subd. (a)(1) - count 5). The information also alleged a repeat offender enhancement as to count 3 (§ 273.5, subd. (e)(1)), that defendant had a prior strike conviction ( § 667, subds. (c) & (e)(1) ), a prior serious felony conviction ( § 667, subd. (a)(1) ) and had served a prior prison term (§ 667.5, subd. (b)).

A jury found defendant guilty on counts 1 through 3 but was unable to reach a verdict on counts 4 and 5. In bifurcated proceedings, the trial court found all the enhancement allegations true.

The trial court sentenced defendant to an aggregate term of 21 years four months as follows: the midterm of four years, doubled for the strike to eight years, for inflicting corporal injury with a repeat offender allegation, in count three, as the principal term; the midterm of three years, doubled for the strike to six years, for his conviction of dissuading a witness in count one; a consecutive term of eight months, one-third of the midterm, doubled for the strike to one year four months, for false imprisonment in count two, plus a sentence enhancement of five years to be served consecutively for a prior serious felony conviction. The court added a consecutive one-year term for the prior prison term enhancement.

DISCUSSION

IForfeiture-by-Wrongdoing

Defendant contends the admission of E.’s hearsay statements made to law enforcement violated his Sixth Amendment right to confront the witnesses against him. He contends the trial court erred in finding the doctrine of forfeiture by wrongdoing applied which rendered these statements admissible, as there was not substantial evidence he intended to make E. unavailable to testify and the independent advice of her court appointed attorney is what caused her refusal to testify.

A. Procedural Background

The People filed a motion in limine seeking to admit E.’s statements to Hatcher and Gonzalez. The People argued defendant had forfeited his confrontation rights by discouraging the victim from attending hearings and encouraging her to call authorities and claim she had lied in her previous reports; that is, forfeiture by wrongdoing. Attached to the motion were transcripts of two jail calls from defendant to E.

Exhibit A was a portion of the September 9 phone call referred to above. Exhibit B was an excerpt from the conversation between defendant and E. on January 9, 2016.

1. The September 9, 2015 Call

The transcript of this call (Exhibit A) set forth the following:

"[Defendant]: You need to call, baby, and say you made another false report, that's it.

"[E.]: OK.

"[Defendant]: And that this was all a fuckin’ lie baby. Baby?

"[E.]: Alright.

"[Defendant]: That's the only way, I'm telling you, that's the only fuckin’ thing you can do, baby. I'm telling you because I fuckin’, baby, I wanna fuckin’ marry you, and I wanna fuckin’ be with you but[--]

"[E.]: I know baby.

"[Defendant]: If I go to fuckin’ prison, [E.], and I don't have you anymore, baby, I don't wanna fuckin’, I don't wanna fuckin’ be out.

"[E.]: I know baby. You're not going. I'm gonna, I'm getting you out.

"[Defendant]: Baby, for real.

"[E.]: Huh?

"[Defendant]: Look at me baby. You're the only place I wanna fuckin’ be, baby, is in your fuckin’ arms.

"[E.]: I know baby.

"[Defendant]: C'mon [E.]. Go fuckin’ do this baby.

"[E.]: I will. I'm going to do it tomorrow morning, I promise."

2. The January 9, 2016 Call

Exhibit B was a selected transcript of a second call on January 9, 2016:

"[Defendant]: So you got me though?

"[E.]: For sure.

"[Defendant]...