Filed 6/17/13 P. v. Illingworth CA2/7
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                       DIVISION SEVEN


THE PEOPLE,                                                                   B240464

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. KA095815)
          v.

JOHN ILLINGWORTH,

          Defendant and Appellant.




                     APPEAL from a judgment of the Superior Court of Los Angeles County.
Mike Camacho, Judge. Affirmed.


                     Kelly C. Martin, under appointment by the Court of Appeal, for Defendant
and Appellant.


                     Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R.
Johnsen and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and
Respondent.


                                    ___________________________________
                                     INTRODUCTION
       At trial, the jury found John Illingworth guilty as charged on one count of
inflicting corporal injury on his child‟s parent, and the trial court found true a prior
conviction allegation. Illingworth was then sentenced to state prison for a term of four
years. He appeals, claiming the trial court committed misconduct in questioning
witnesses and abused its discretion in admitting evidence of 9-1-1 calls. We affirm.
                      FACTUAL AND PROCEDURAL SUMMARY
       Viviana Doe (a fictitious last name to protect her privacy) and John Illingworth
had dated since 2008, but their relationship was “on again, off again,” with periods of
argument and separation. In 2008, they had an “altercation” when Illingworth “got mad
with [Doe],” and the police responded. At that time (on September 27, 2008), Doe wrote
a letter for the police about what had happened. She said she had been walking past
Illingworth‟s house on her way to a female friend‟s house when Illingworth stopped her
and was “pushy and violent.” He “acted like he was going to give her a kiss” but “then
he head-butted [her],” giving her a “bump” on her lip. After that, they “talked things out
and it was fine then.”
       On another occasion, in April 2009, when Doe was seven months pregnant with
her first child with Illingworth, Illingworth “got upset when [Doe] was trying to leave” to
go home. She wrote a letter for the police (dated April 24, 2009) that time as well. As
recounted in the letter, he took the bicycle she had ridden to his house that day and threw
it into the street. Then he slapped her in the face, “hit[ting her] with his open hand as
hard as he could.” He threw her bicycle into the street several times until he broke it, and
Doe called the police to “come help” her. The slap left a “big mark” on Doe‟s face—his
“handprint.” That time, Illingworth went to jail for a few months.
       About a month and a half or so after Illingworth got out of jail, Doe and
Illingworth again “talked things out,” and she “didn‟t think anything was going to
happen” so they got back together.
       On September 25, 2011, at 10:29 p.m., an unidentified female called 9-1-1, stating
a “lady . . . she‟s yelling out for help. It‟s domestic violence.” The caller provided the

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location and said “she‟s running down the street, she was calling out for help, and that
guy took off. . . . He was beating her up pretty bad. Oh, he‟s right here. That‟s him.”
She said the man and woman were Hispanic, described the woman‟s clothing and gave an
approximate age for the woman; she said she was going to get the license plate of the
man and reported back with such information, then stated “he just took off right now.”
       A second unidentified female called 9-1-1 at 10:30 p.m. and reported “a female
screaming for help. A male, I think, is hitting her.”
       A third call regarding the same location came into the 9-1-1 operator at 10:31 p.m.
Another unidentified caller said: “I have to report . . . a fight between a couple.” She
said the man had run down the street and was at the park “right now” at a truck, then said
he had gone.
       At 10:34 p.m., Doe called 9-1-1 and said, “Will you hurry up and send somebody
over here now?” She provided her address and told the dispatcher: “He beat me up right
now.” She gave her name and said, “I want him to go to jail.” The dispatcher told Doe
she needed to “calm down.” She responded, “No. But you better fuckin[‟] get him.”
She provided Illingworth‟s full name, said he was her “baby‟s dad,” and told the
dispatcher he had left in a blue GMC Colorado. “And you better fuckin[‟] come get
him. . . . You should see how he left me. . . . I need paramedics right now.”
       Doe called 9-1-1 again at 10:37 p.m. and said, “I need someone here now.” When
the dispatcher asked where Illingworth went, she did not know but said he had probably
gone home and provided his address. Again, she said, “I need you to come over here and
get him,” adding “he has priors for this shit.”
       At about 10:30 p.m. that night, El Monte Police Department Officer Aaron
Armstrong was dispatched to Doe‟s apartment. When he met with Doe, she was “badly
beaten about her face, was bleeding, swollen.” Armstrong‟s partner photographed Doe.
She was “hysterical, screaming. It took a while to calm her down.” She was “panicked,
screaming for help, begging us to go find the person who had beat her.” She said his
name was John Illingworth.


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       Doe told Officer Armstrong she had been dating Illingworth for about three years.
She said they had been walking together toward her residence when they became
engaged in a verbal argument. She said he “ended up getting upset, violently pushing her
to the ground and standing over her and punching her five to seven times in the face
while she screamed for help and tried to defend herself.” Although she told Illingworth
she had not done so, she said the argument was about whether she had been “hanging out
with . . . El Monte gang members.” After Illingworth stopped punching her, Doe said, he
“got off of her and he ran away . . . .” She said he had gone back to her house and her
mom had let him in because she did not know what had happened; he got some of his
things and left. After that, she said, she went up to her apartment and called 9-1-1. She
told Officer Armstrong there had been another incident the year before. She described
Illingworth‟s truck and Officer Armstrong verified the license plate which matched the
plate relayed by one of the 9-1-1 callers. Doe was “adamant” that she wanted Illingworth
prosecuted.
       Officer Armstrong then tried without success to locate Illingworth, checking the
residence where he lived with his father (but finding the truck he had been driving was
gone) and calling him on his cell phone (but he did not answer).
       Detective David Rios was assigned to conduct the follow-up investigation and
contacted Doe on October 6 by telephone. Doe confirmed the information she had
provided Officer Armstrong, reiterating Illingworth had punched her in the face
following an argument and then ran to her apartment, grabbed his backpack and left
before she arrived there herself. She never stated that anyone else was the “real
perpetrator.”
       Detective Rios left a message for Doe‟s mother (Guadalupe Alvarez), requesting
that she call him, and she did. Alvarez told the detective she had been home when
Illingworth was there, visiting his child.1 Doe and Illingworth stepped out to take out the


1    Detective Rios is fluent in Spanish (his first language), and he had no difficulty
communicating with Alvarez.
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trash, but it became evident to her they had gone someplace as they did not return right
away. While she was home with her granddaughter, the “front door suddenly burst
open[;]” she said Illingworth ran in, grabbed his backpack and left. A little while later,
Doe “ran in the house. She was screaming. She had blood on her face and said that
[Illingworth] had hit her . . . .”
       When Detective Rios contacted Illingworth, he said he and Doe “had a verbal
argument” and “nothing else happened.”
       Illingworth was charged with one count of inflicting corporal injury on a child‟s
parent in violation of Penal Code section 273.5, subdivision (a).2 Pursuant to subdivision
(e)(2) of section 273.5, it was further alleged Illingworth had a prior conviction for
violating section 243, subdivision (e)(1).3
       At trial, the People presented evidence of the facts summarized above. Recordings
of the 9-1-1 calls, including Doe‟s, were played for the jury. By then, Doe was pregnant
with a second child with Illingworth. She testified that on September 25, 2011, she and
Illingworth had been together from noon until 6:00 or 7:00 p.m. After dinner, they
walked to her cousin‟s home. She said they were “trying to work things out,” trying to
see if they were “going to take it to the next level” which meant “getting [their] own
place.” They spent an hour at the cousin‟s home before returning to Doe‟s apartment. At
about 8:00 p.m., Doe testified, Illingworth went home because he had to work the next
day; Doe went across the street to the park.
       While sitting on a park bench, Doe testified, she saw a black Nissan Sentra drive
by. She had seen the man driving the Sentra before and he had tried to talk to her before,
but she had ignored him. This time, she said, he stopped and tried to get her “to go back




2      All undesignated statutory references are to the Penal Code.

3     A second count for disobeying a domestic relations court order (§ 273.6, subd. (a))
was dismissed before trial. (§ 1385.)
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to his room.” She said she made a “smart remark.”4 She started to walk away, but the
man pushed her. Then she knew there were two females. She testified she saw one girl
from the back, then said she felt one from the back because she pulled Doe‟s hair. “All I
remember is being dropped to the floor.” She could not see their faces.
       The man was standing about 11 feet, 10 inches away, “just kind of looking
around[;]” then she said she did not know where he was standing but knew he was
standing nearby because his car was parked. Doe was trying to swing but she was on the
ground, and the “girls were all on top of her.” She said they hit her about 20 times with
their fists. She had a “hole on [her] lip” where her tooth went through it and “all this
blood coming down all over.” Then, she testified, without saying anything, the “girls
took off.” Also, the man was already in the car and he “was taking off.” The girls and
the man went in the same direction, separately.
       After the girls “went off on their own,” and the man drove away, Doe testified, she
ran across the street to her apartment and told her mother to call 9-1-1 because she just
“got in a fight” with Illingworth. Although she and Illingworth had “gotten along” that
day, she said, she named Illingworth as her attacker because she was “afraid for [her]
life” because she did not want to bring attention to the park because she assumed the
attackers were nearby so she did not want anything to happen to her mother or her
daughter “because they seen where [Doe] went.”
       When police arrived, she again said Illingworth had beaten her up but said she
tried to call police several times later to “follow up” but the “detective never called [her]
back.” She said she had lied to the police when she told them that Illingworth had gotten
angry with her for “hanging out” with gang members; that he grabbed her and pushed her
to the ground; that he punched her five to seven times in the face; and that he had been
drinking that night.




4     She first testified she had told the man, “No . . . I don‟t go with people that I don‟t
know.” Then she said she told him she was “not too hard up for drugs.”
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       After the incident, before Illingworth was arrested, Doe and Illingworth continued
to see each other. Illingworth had a new job, and Doe‟s mother moved out of the
apartment. Doe was unemployed and Illingworth supported her.
       After she calmed down, Doe was “immediately” aware Illingworth would be
arrested because she had said he had been the one to attack her. By September 26, 2011
(the day after the incident), she knew she had “messed up” and “wanted to fix the
situation” so she “asked” Illingworth to “call his lawyer to see what he suggested we do.”
She did not “fix the situation” when she spoke with Detective Rios on October 6, 2011.
       Alvarez (Doe‟s mother) testified she was home when Doe came home “all beaten
up.” She said she did not know if Doe had left with anyone else when she took out the
trash. First, she said Illingworth had not been to the apartment that day but then said he
had been there for a few hours. When Doe came in beaten up, Alvarez said she asked
Doe what had happened but Doe did not say who had attacked her. She said she did not
speak with the police when they came because she was praying. She initially testified she
had not spoken with police about what had happened, but then admitted telling Detective
Rios Doe and Illingworth had left to take out the trash and were gone longer than
expected. She denied saying Illingworth later burst into the apartment, grabbed his
backpack and left again.
       Alvarez said Doe was unemployed and she (Alvarez) was supporting Doe and her
daughter, with another baby due. “The only thing I want is for him to be out. For me, he
is a good person because she needs him. I‟m helping to pay the rent. I have to pay my
rent. So then she needs his help, please. I want, please, for him to be out.”
       In Illingworth‟s defense, his brother and his father testified he had been home at
the time of the incident; they remembered the date because Illingworth was going to start
a new job the next day.
       The jury found Illingworth guilty as charged of inflicting injury on a fellow parent
resulting in a traumatic condition in violation of section 273.5, subdivision (a). In a
bifurcated proceeding, the trial court then found true the prior conviction allegation.


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          The trial court sentenced Illingworth to the upper term of four years in state
prison.
          He appeals.
                                         DISCUSSION
Illingworth Has Failed to Demonstrate Prejudicial Judicial Misconduct.
          According to Illingworth, reversal is required because the trial court “aligned itself
with the prosecution when it asked repeated and sometimes hostile questions of
witnesses, implied Doe was deliberately misleading the jury and suggested [Illingworth‟s
brother] may not have been truthful.” We disagree.
          Before the presentation of any evidence, the trial court instructed the jury: “Do
not take anything I say or do during the trial as an indication of what I think about the
facts, the witnesses, or what your verdict should be.” Later, the trial court instructed the
jury with CALCRIM No. 3550, which again reiterated: “It is not my role to tell you what
your verdict should be. Do not take anything I said or did during the trial as an indication
of what I think about the facts, the witnesses, or what your verdict should be.”
          During Doe‟s testimony, the prosecutor asked Doe if she had told the truth in the
first letter she had written to police (when she said Illingworth had struck her in 2008).
          “[Doe]: Um, yeah. That was—that was prior to—well, they had already went to
his house. They had stopped me because the cops came and everything. They were
circling. I guess somebody had called the cops.
          “The Court: Viviana, I know you‟re doing your best to answer our questions.
You need to focus on the questions asked, simply answer the question without
elaborating—
          “[Doe]: Okay.
          “The Court: As you‟ve been doing. The question is when you wrote that letter,
was it a truthful statement?
          “[Doe]: Yes.
          “The Court: Next question.”


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       Illingworth says the prosecutor intervened in this manner during Doe‟s testimony
24 times and interrupted Javier‟s testimony 7 times. We have reviewed the record, and
the bulk of Illingworth‟s objections on appeal to the trial court‟s intervention are of a
similar nature. He says the “most egregious comment” was when the court interjected
during Doe‟s testimony as follows (and ultimately struck this portion of testimony):
“You told us they left and then you went to your house. Now you‟re telling us that they
saw where you went afterwards. I don‟t want you to mislead the jury . . . .”           “A
court may control the mode of questioning of a witness and comment on the evidence and
credibility of witnesses as necessary for the proper determination of the case. [Citations.]
Within reasonable limits, the court has a duty to see that justice is done and to bring out
facts relevant to the jury’s determination. [Citation.] A court commits misconduct if it
persistently makes discourteous and disparaging remarks so as to discredit the defense or
create the impression it is allying itself with the prosecution. [Citations.]” (People v.
Santana (2000) 80 Cal.App.4th 1194, 1206-1207, original italics.)
       “As a general rule, judicial misconduct claims are not preserved for appellate
review if no objections were made on those grounds at trial.” (People v. Sturm (2006) 37
Cal.4th 1218, 1237, citations omitted; see also People v. Raviart (2001) 93 Cal.App.4th
258, 269 [“„It is settled that a judge‟s examination of a witness may not be assigned as
error on appeal where no objection was made when the questioning occurred‟”].)
“However, a defendant‟s failure to object does not preclude review „when an objection
and an admonition could not cure the prejudice caused by‟ such misconduct, or when
objecting would be futile.” (People v. Sturm, supra, 37 Cal.4th at p. 1237, citations
omitted [hostility between trial judge and defense counsel was “evident”].)
       Here, however, Illingworth never objected to the trial court‟s interactions with any
of the witnesses. Consequently, he has forfeited this claim of error. (People v. Sturm,
supra, 37 Cal.4th at p. 1237; People v. Raviart, supra, 93 Cal.App.4th at p. 269.)
Although he cites People v. Sturm, supra, 37 Cal.4th 1218, for the proposition that a
party need not object where such an objection would have been futile, he identifies no
support in the record for his assertion an objection would have been futile in this case or

                                              9
other indication a simple objection and admonition would not have cured any claim of
prejudice. Having reviewed the record, we find no basis for Illingworth‟s unsubstantiated
assertion of such futility. It follows that this claim of error was forfeited.
       In any event (and noting his ineffective assistance of counsel claim), we find no
merit in Illingworth‟s claim he was prejudiced as a result of judicial misconduct.
       Even if the trial court‟s questioning highlighted conflicts and inconsistencies in
Doe‟s testimony as Illingworth urges, any resulting error was necessarily harmless by any
measure. (People v. Sturm, supra, 37 Cal.4th at p. 1244 [declining to decide whether
Chapman or Watson standard applies to judicial misconduct for disparaging defense
counsel and questioning witnesses in a manner indicating the court favored the
prosecution].) Doe conceded that she had lied on a number of occasions. Indeed, she
acknowledged she had lied in stating that the woman in court with her daughter was not
her mother but her aunt (Celina Mendoza) and she did not know where her mother
lived—testimony immediately proven false. She was shown to have lied to the police
and to the court. Defense counsel specifically acknowledged in closing that she was
neither honest nor trustworthy.
       Furthermore, all of the contemporaneous evidence surrounding the attack
established Illingworth had been the one who attacked Doe. She confirmed in her calls to
the 9-1-1 operator that he had been the one to beat her, and the other calls were all
consistent, with no mention of any other man with a Nissan Sentra or two girls who went
off on their own. Indeed, the same license plate provided by one of the callers matched
the truck Illingworth drove. In addition to her own 9-1-1 call, Doe confirmed what had
happened to police later that night and again 11 days later. Alvarez identified Illingworth
multiple times as well. At trial, it was clear that Doe was expecting another baby and
was unemployed, her mother was under financial hardship doing the best she could to
keep Doe “off the streets” and the two wanted Illingworth to help Doe. Because the
evidence of Illingworth‟s guilt was overwhelming and the witnesses for the defense
proved themselves to be unbelievable, Illingworth has failed to demonstrate prejudicial
error as required for reversal. (People v. Sturm, supra, 37 Cal.4th at p. 1244.) It follows

                                              10
that Illingworth‟s related claim of ineffective assistance for failure to object to the trial
court‟s questioning of witnesses is also meritless.
       In a related argument, Illingworth says he was deprived of a fair trial because the
trial court impermissibly commented on the evidence and failed to instruct the jury with
CALCRIM No. 3530 or its equivalent. As the Attorney General notes and Illingworth
concedes in his reply, the trial court instructed the jury twice with the same language he
says was missing from his trial—first, with CALCRIM No. 101, given before the
presentation of any evidence, and later, with CALCRIM No. 3550, prior to deliberations.
To the extent, Illingworth‟s challenge to the trial court‟s conduct survives this
concession, we have rejected it in finding Illingworth was not prejudiced by judicial
misconduct.
The Trial Court Did Not Abuse Its Discretion in Admitting the 9-1-1 Calls Pursuant
to Evidence Code Section 1240.
       Citing People v. Gutierrez (2000) 78 Cal.App.4th 170, 45 Cal.4th 789, 811,
Illingworth says the “crucial element in determining whether an out-of-court statement is
admissible as a spontaneous declaration is the mental state of the speaker,” and there was
no substantial evidence the callers were under the stress or excitement of the events they
had witnessed. Therefore, the statements were inadmissible under Evidence Code
section 1240, and he was prejudiced as a result.
       Evidence Code section 1240 provides as follows: “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 decision to admit evidence under Evidence Code section 1240 is reviewed
for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236 [92 Cal. Rptr. 2d
58, 991 P.2d 145].) „Whether the requirements of the spontaneous statement exception
are satisfied in any given case is, in general, largely a question of fact. [Citation.] The

                                              11
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.]‟” (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588-1589.)
       As our Supreme Court explained in People v. Gutierrez, supra, 45 Cal.4th 789,
“The word „spontaneous‟ as used in Evidence Code section 1240 means „actions
undertaken without deliberation or reflection. . . . [T]he basis for the circumstantial
trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the
reflective faculties may be stilled and the utterance may become the instinctive and
uninhibited expression of the speaker‟s actual impressions and belief.” (Id. at p. 811,
citation omitted.) In this case, having reviewed the statements in their entirety, the record
supports the conclusion the statements were made contemporaneously, spontaneously,
and without time for deliberation. (Ibid. [“whether the speaker blurted it out, for
example” may be important as an indicator of the mental state of the declarant].) We
conclude the trial court did not abuse its discretion in admitting these statements as
spontaneous statements within the meaning of Evidence Code section 1240. (People v.
Saracoglu, supra, 152 Cal.App.4th at p. 1588.) Moreover, Doe herself called 9-1-1
within minutes of the other callers, relaying the same information which she also
confirmed with police that night and again weeks later (as did Alvarez). Even if
Illingworth had established error in the admission of the other 9-1-1 statements, he has
failed to demonstrate how he was prejudiced as a result on this record.
       Because we have rejected each of Illingworth‟s other claims, it follows that his
claim of cumulative error fails as well.
                                      DISPOSITION
       The judgment is affirmed.


                                                                        WOODS, J.
We concur:


              PERLUSS, P. J.                                            ZELON, J.

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