Filed 7/20/15 P. v. Terry CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068006
         Plaintiff and Respondent,
                                                                         (Kings Super. Ct. No. 13CM0701)
                   v.

CHARLIE TERRY, JR.,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter,
Judge.
         John Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *   Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
       After a bench trial, the court convicted appellant, Charlie Terry, Jr., of inflicting
corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and being under the influence
of methamphetamine (Health & Saf. Code, § 11550, subd. (a)).
       On appeal, Terry contends: 1) the court admitted the victim’s statement to police
in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford); 2) the court
admitted his statements to police in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda); and 3) the evidence is insufficient to sustain his conviction for being under
the influence of methamphetamine. We affirm.
                                           FACTS
       On February 22, 2013, in the early morning hours, Joel Kim heard a woman
screaming from a house down the street.
       At approximately 1:21 a.m., Lemoore Police Officer Ryan O’Barr responded to
the residence, which had its exterior and interior lights on and the front door open. As he
parked across the street, Officer O’Barr heard a woman yelling. The officer was walking
to the residence when a man, later identified as Terry, came to the front door and made
eye contact with him. Terry immediately turned around, shut the door, and turned off the
outside lights. O’Barr then saw silhouettes moving in the residence. Terry’s wife,
Jennette,1 then came out of the house unclothed and crying hysterically. O’Barr
contacted Jennette and she told him that Terry had gone into the kitchen. O’Barr ordered
Terry to go outside where he pat searched him for weapons and had him sit down.
       Officer O’Barr had Jennette go inside the house to get dressed. When she returned
he started a tape recorder and began asking her questions to try to ascertain whether or
not there was an ongoing emergency and whether she needed any medical attention. In
the portion of the recording admitted into evidence, O’Barr asked Jennette several

       1  Mrs. Terry’s first name has various spellings throughout the record. We adopt
“Jennette” as the spelling for her first name because that is how she spelled her name in a
letter she wrote and presented to the court at sentencing.


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preliminary background questions including her name, address, and birthdate.2 He then
asked her, “What’s goin[g] on tonight.” In response to this question and several others,
Jennette stated that Terry was a methamphetamine user who had been off the drug for
three weeks. However, he was high that day, even though he denied it, and he kept going
in and out of the house. Jennette then explained that she had been trying to get Terry to
lie down and go to sleep on the living room floor because they had a driver’s test the
following morning. As she and Terry lay on the floor in the living room, Terry began
telling her he had seen a picture of her on the Internet and that she cheated on him. Terry
then told Jennette she was going outside with him and he wrapped something on her
neck. Terry began pulling her by the hair and dragging her unclothed outside, but she
kept going back in the house. At one point, Terry pushed Jennette down and began
hitting her on the head. O’Barr asked Jennette whether she needed an ambulance. When
she replied that she did not, O’Barr asked her more background questions. He then
stated: “Ok I’m going to take this … step by step, ok so that I can fully understand
what’s going on, ok. So you were, when did the whole Facebook thing come up?”
       After the above portion of Jennette’s interview was admitted into evidence,
Officer O’Barr testified he saw three abrasions on Jennette’s left knee, two of which were
still slightly bleeding, an injury to her hip, and a cut on her lower left lip that appeared to
have been caused by her lip striking her tooth. The injuries to her knee and her hip were
consistent with Jennette having been dragged on the ground. The cut on her lip was

       2  Jennette asserted her Fifth Amendment right against self-incrimination and did
not testify at the trial regarding her statements to Officer O’Barr because she was
concerned that she might subject herself to prosecution for filing a false police report.
During the trial, defense counsel objected only on hearsay grounds to her statements to
O’Barr that the prosecutor sought to introduce into evidence. The court overruled
defense counsel’s hearsay objection. However, on its own initiative, the court also
considered whether Jennette’s statements to O’Barr were testimonial and, thus, barred by
Crawford, supra, 541 U.S. 36. The court ruled that the statements by Jennette that are
summarized above were not testimonial and, thus, not barred by Crawford.


                                               3.
consistent with her having been struck on the face. O’Barr also observed that Terry had
several scratches and other abrasions on both his hands.
        Officer O’Barr also interviewed Terry. Terry told the officer that Jennette
suffered from bipolar disorder and she would “flip out” and blame things on him. That
night, he had gotten up to smoke a cigarette when Jennette began to strike him. At one
point, she went into the backyard, threw herself down on a concrete area, and told Terry
he was going to jail. They both went back inside the house and Jennette struck him a few
more times. Terry started to go out the front door when he saw O’Barr arrive. Terry
claimed his hands were cut when he put them up to prevent Jennette from scratching his
face.
        Officer O’Barr had Terry perform several tests to determine if he was under the
influence of a controlled substance. The tests disclosed that Terry’s pulse was 106 beats
per minute, his eyelids fluttered, and when exposed to the light of a flashlight, Terry’s
pupils constricted from five millimeters to 4.5 millimeters and pulsated. These results led
O’Barr to believe Terry was under the influence of a controlled substance, and he placed
him under arrest.
        At the police station, Officer O’Barr performed a presumptive test on a urine
specimen provided by Terry and the specimen tested positive for amphetamine and
methamphetamine. The specimen was also sent to a lab and analyzed by Bill Posey, a
toxicologist. According to Posey, there was no threshold level of methamphetamine that
he used to determine whether a person was under the influence. Further, a positive result
meant only that the person had used methamphetamine in the previous three to four days
before the sample was taken.
                                      DISCUSSION
The Crawford Issue
   Terry contends the court prejudicially erred when it allowed the prosecutor to
introduce Jennette’s statements because they were testimonial and, thus, their admission

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into evidence violated his Sixth Amendment right to confrontation pursuant to Crawford,
supra, 541 U.S. 36. Respondent contends Terry forfeited this issue by his failure to
object in the trial court on Crawford grounds to the introduction of Jennette’s statement.
Alternatively, respondent contends that the introduction of this statement did not violate
Crawford because it was not testimonial. We reject the respondent’s forfeiture argument
but agree that the introduction of Jennette’s statement did not violate Crawford.

                “The Confrontation Clause of the Sixth Amendment provides: ‘In
       all criminal prosecutions, the accused shall enjoy the right ... to be
       confronted with the witnesses against him.’ In [Crawford, supra,] 541 U.S.
       [at pp. 53–54, the United States Supreme Court] held that this provision
       bars ‘admission of testimonial statements of a witness who did not appear
       at trial unless he was unavailable to testify, and the defendant had had a
       prior opportunity for cross-examination.’ ” (Davis v. Washington (2006)
       547 U.S. 813, 822 (Davis).)

              “[In Davis,] [t]he court succinctly distinguished testimonial from
       nontestimonial statements as necessary to decide the matters before it.
       ‘Statements are nontestimonial,’ the court said, ‘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.’ [Citation.]” (People v.
       Cage (2007) 40 Cal.4th 965, 982 (Cage), fn. omitted, citing Davis, supra,
       547 U.S. at pp. 819–824.)
       In Cage, supra, 40 Cal.4th 965, the California Supreme Court stated,

               “We derive several basic principles from Davis. First, as noted
       above, 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


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       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.” (Id. at p. 984, some italics added, fns. omitted.)
       As a preliminary matter, respondent claims Terry forfeited his right to challenge
Jennette’s statements to Officer O’Barr under Crawford because he did not expressly
invoke that decision as a ground for excluding them in the trial court. However, an
objection was not required because the court, on its own initiative, interjected the
Crawford issue in ruling on Terry’s hearsay objection to these statements. The purpose
of a timely, specific objection is to “to alert the trial court to the nature of the anticipated
evidence and the basis on which exclusion is sought, and to afford the People an
opportunity to establish its admissibility. [Citations.]” (People v. Williams (1988) 44
Cal.3d 883, 906.) Those goals were met here when the court addressed the Crawford
issue on its own initiative. (People v. Brenn (2007) 152 Cal.App.4th 166, 173–174.)
       Further, this case is similar to People v. Johnson (2007) 150 Cal.App.4th 1467
(Johnson). In Johnson, Officer Sevillo responded to a report of a domestic disturbance,
knocked on the door of the residence, and heard a woman scream. The defendant
answered the door with blood on his hands and shirt. The woman continued to scream.
The officer entered the house and, in a bathroom, found the woman sitting on a toilet,
slumped over covering her bloodied face with bloodied hands. The officer also observed
that the woman’s nose was swollen and red, and the bridge of her nose was purplish. The
woman was emotional, distraught, and crying as Sevillo spoke to her to see if she was
okay and to make sure she received medical attention. The officer asked her what
happened and she said, “ ‘He punched me in the face, look at my nose.’ ” (Id. at
pp. 1472–1473.)


                                               6.
       In holding that the woman’s statements were not testimonial, and thus admissible,
the Johnson court stated,

       “We decide the issue by applying the test set forth by the court [in Davis,
       supra, 547 U.S. 813]: Did the circumstances objectively indicate that there
       was an ongoing emergency when the victim made the statement to Sevillo?
       We think they do. Sevillo heard the woman screaming as he stood at the
       door; the man who answered the door had blood on his hands; and the
       woman in the bathroom had a bloody, broken nose. That is the only
       information the officer had when he asked ‘What happened?’ Indeed,
       although he might have suspected domestic violence, Sevillo did not know
       at that point whether or not a crime had been committed. The officer
       interrupted an ongoing emergency and obtained information from the
       victim in order to assess the situation. Thus, her statement to him was not
       testimonial.” (Johnson, supra, 150 Cal.App.4th at p. 1479, original italics.)
       Here, Officer O’Barr was responding to a possible domestic disturbance call at a
residence. Upon arriving at the scene he encountered a man at the doorway who
immediately went back inside upon making eye contact with the officer. O’Barr was
then met by an undressed women who was hysterical and crying and who had sustained
scrapes on her leg and hip and a cut lip. At that point O’Barr did not know whether a
crime had been committed. Further, although O’Barr had allowed Terry to sit on the
ground outside of his house, presumably while being watched by other officers, he did
not know whether other suspects were involved in the disturbance or whether they were
armed. Additionally, based on Jennette’s injuries and her emotional state, he had an
objective basis for believing there might be an ongoing medical emergency, and he
needed additional information about what had happened to determine whether the victim
had suffered more serious injuries. Thus, the record supports the trial court’s conclusion
that Jennette’s statements that were admitted into evidence were not testimonial because
the primary purpose of O’Barr’s interrogating Jennette was to determine if she needed
medical assistance.
       Terry contends that there was no present ongoing medical emergency when
Officer O’Barr spoke with Jennette because she told him that she did not need an

                                            7.
ambulance. He contends the situation was similar to Hammond v. Indiana (2005) 829
N.E.2D 444 (Hammond), which was discussed in Davis, supra, 547 U.S. 813 and Cage,
supra, 40 Cal.App.4th 965, two cases in which the court found that the victim’s
statements to officers were testimonial. Terry is wrong.
       Officer O’Barr did not have to accept Jennette’s statement that she did not require
an ambulance at face value. In view of her obvious injuries and her agitated mental state,
O’Barr could have reasonably concluded that she might not be accurately reporting her
medical needs and that some questioning was required in order to determine whether she
might have suffered an injury that, in fact, did require medical treatment. In any event,
Jennette did not tell the officer that she did not need an ambulance until after she had
described the earlier incident during which Terry assaulted her. Thus, even if her
statements after that point were “testimonial,” admission of these statements into
evidence was harmless beyond a reasonable doubt.
       Further, Hammond and Cage are easily distinguishable. In Hammond, the officer
responded to a domestic violence call and did not encounter an ongoing emergency. The
officer did not hear any arguments and or encounter any ongoing commotion. Instead,
when he arrived, a woman told the interrogating officer that everything was fine, and she
apparently did not have any injuries. (Davis, supra, 547 U.S. at p. 829.) In finding that
the victim’s oral statements in Hammond were testimonial, the court noted that these
statements were “neither a cry for help nor the provision of information enabling officers
immediately to end a threatening situation[.]” (Davis, supra, at p. 832.)
       In Cage, a male juvenile whose mother slashed his face with a piece of glass, was
interviewed by a police officer in a hospital emergency room more than an hour after the
assault. (Cage, supra, 40 Cal.4th at pp. 984–985.) Thus, Cage is also easily
distinguishable from the instant case because with the victim in a hospital room more
than an hour after the assault, there was no objective basis for concluding that the
victim’s statements were elicited to deal with a contemporaneous medical emergency.

                                             8.
Accordingly, we conclude the court did not abuse its discretion when it allowed the
prosecutor to introduce into evidence Jennette’s statements to Officer O’Barr.
The Miranda Issue
       Terry contends he should have been given his Miranda warnings because the
evidence was uncontested that he was in custody when he was interrogated by Officer
O’Barr. Alternatively, he contends he was denied the effective assistance of counsel if he
forfeited this issue by defense counsel’s failure to object. We reject both contentions.

               “ ‘Miranda requires that a criminal suspect be admonished of
       specified Fifth Amendment rights. But in order to invoke its protections, a
       suspect must be subjected to custodial interrogation ....’ [Citation.] ‘Thus
       two requirements must be met before Miranda is applicable; the suspect
       must be in “custody,” and the questioning must meet the legal definition of
       “interrogation.” ’ [Citation.] The prosecution has the burden of proving
       that a custodial interrogation did not take place. [Citation.]

               “A person is in custody for purposes of Miranda if he is ‘deprived of
       his freedom in any significant way or is led to believe, as a reasonable
       person, that he is so deprived.’ [Citation.] ‘Interrogation consists of
       express questioning or of words or actions on the part of police officers that
       they should have known were reasonably likely to elicit an incriminating
       response.’ [Citations.]” (People v. Whitfield (1996) 46 Cal.App.4th 947,
       953, original italics.)
       Terry did not object on Miranda grounds to the introduction of his statements to
Officer O’Barr. Thus, he forfeited this issue on appeal. (People v. Doolin (2009) 45
Cal.4th 390, 437.)
       Moreover, “[t]o prevail on a claim of ineffective assistance of counsel, the
defendant must show counsel’s performance fell below a standard of reasonable
competence, and that prejudice resulted. [Citations.] When a claim of ineffective
assistance is made on direct appeal, and the record does not show the reason for counsel’s
challenged actions or omissions, the conviction must be affirmed unless there could be no
satisfactory explanation. [Citation.] Even where deficient performance appears, the
conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but


                                             9.
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
       The record here does not indicate whether Terry was read his Miranda rights prior
to talking with Officer O’Barr. This, however, does not necessarily mean that he did not
receive these admonitions. Since Terry did not object to his statements being introduced
into evidence on Miranda grounds, this may simply mean that the prosecutor elected to
not introduce evidence that Terry was read these rights because he did not have to.
Further, Terry’s statements to O’Barr allowed defense counsel to present Terry’s theory
of self-defense to the court without subjecting him to being cross-examined. Thus,
defense counsel may have had a tactical reason for not objecting to the introduction of
these statements. In either case, Terry has not met his burden of showing that his defense
counsel provided ineffective representation.
       Further, as noted above, Terry has not shown that he was subject to a custodial
interrogation that triggered his right to be read his Miranda rights or that these rights
were not read to him. Thus, Terry has also failed to show that he was prejudiced by
defense counsel’s failure to object on Miranda grounds to his statements being
introduced into evidence. Accordingly, we reject Terry’s ineffective assistance of
counsel claim.
The Sufficiency of the Evidence Claim
       Terry contends that the only evidence that supports his conviction for being under
the influence was Officer O’Barr’s opinion testimony, which he contends was
unsubstantiated and unsupported by the record. Thus, according to Terry, the evidence is
insufficient to support his conviction for being under the influence of methamphetamine.
       “When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,

                                             10.
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] ...We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor revaluates a witness’s credibility. [Citation.]” (People v.
Lindberg (2008) 45 Cal.4th 1, 27.)
       Terry was charged with using and being under the influence of methamphetamine
in violation of Health and Safety Code section 11550.
       In addressing the “being under the influence” prong of Health and Safety Code
section 11550, the Supreme Court stated:

       “One may be guilty of being under the influence of drugs in violation of
       Health and Safety Code section 11550 by being in that state in any
       detectable manner: ‘ “The symptoms of being under the influence within
       the meaning of that statute are not confined to those commensurate with
       misbehavior, nor to those which demonstrate impairment of physical or
       mental ability.” ’ [Citations.]” (People v. Canty (2004) 32 Cal.4th 1266,
       1278, first italics in original, second italics added.)
       Terry provided a urine sample that tested positive for the presence of
methamphetamine. Additionally, Terry exhibited the following symptoms that,
according to Officer O’Barr, indicated he was under the influence of methamphetamine:
Terry’s pulse rate was 106 beats per minute, his pupils were dilated to five centimeters,
his eyelids were fluttering, and his pupils pulsated when exposed to the outer beam of
O’Barr’s flashlight. Thus, the record contains evidence indicating that Terry was under
the influence of methamphetamine in a detectable amount.
       Terry contends Officer O’Barr’s testimony was insufficient to prove he was under
the influence of methamphetamine because he passed one test, and the toxicologist



                                             11.
contradicted O’Barr’s testimony that Terry’s pupillary dilation indicated that he was
under the influence. Terry is wrong.
       Terry does not explain how his ability to pass one test undermines the significance
of his positive test for the presence of methamphetamine in his system or the other
physical symptoms of being under the influence of methamphetamine that he exhibited.
Further, as a reviewing court, “ ‘[w]e resolve neither credibility issues nor evidentiary
conflicts;...’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357, italics added.)
Accordingly, we conclude that the evidence is sufficient to sustain Terry’s conviction for
violating Health and Safety Code section 11550.
                                       DISPOSITION
       The judgment is affirmed.




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