Filed 12/21/15 P. v. Gutierrez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040904
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS132424A)

         v.

SYLVESTER GUTIERREZ,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Sylvester Gutierrez appeals after a jury convicted him of inflicting
corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a))1, battery on a person with
whom he had a dating relationship (§ 243, subd. (e)(1)), and 20 counts of violating a
protective order (§ 166, subd. (c)(1)). Defendant had previously pleaded no contest to
several other charges. The trial court found true an allegation that defendant had a prior
conviction of assault with a deadly weapon, which qualified as a strike (§ 1170.12,
subd. (c)(1)), and it imposed an aggregate prison term of seven years four months.
         Defendant’s domestic violence convictions were based on an incident involving
his former girlfriend, Jane Doe. Doe had reported the incident in a 9-1-1 call and in a

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
police interview, but at the preliminary hearing, she recanted. At trial, Doe was found
unavailable and did not testify, but her preliminary hearing testimony was introduced into
evidence, along with her 9-1-1 call and the statements she made during the police
interview.
         Following the domestic violence incident, a protective order was issued; it
prohibited defendant from contact with Doe. The charges of violating a protective order
were based on a number of phone calls and visits between defendant and Doe while
defendant was in jail. Several of the jail phone calls were introduced into evidence at
trial.
         On appeal, defendant challenges the admission of Doe’s preliminary hearing
testimony, police interview statements, and 9-1-1 call. He also challenges the admission
of the jail phone calls. Defendant further contends there was insufficient evidence to
support the jury’s finding that Doe was a cohabitant of defendant, and that there was
insufficient evidence to support the trial court’s finding that defendant’s prior assault
conviction was a strike. We find no merit to these claims and will therefore affirm the
judgment.

                                  II.    BACKGROUND
         A.    Domestic Violence Incident
         On June 1, 2013, Jane Doe called 9-1-1 from outside the police station. She told
the dispatcher she wanted to report “a domestic violence.” She reported that the incident
had been “very physical” and that she had bruises on her face. Doe said she did not need
an ambulance, explaining, “I’m fine. A little shaken up, that’s all.” When asked when
the incident had occurred, Doe responded, “Today, earlier today. It’s . . . it’s been . . . it’s
been happening off and on, and I never really reported it.” She named defendant as the
perpetrator and began crying. Doe explained that she and defendant had been arguing,




                                               2
and that defendant had “just started hitting [her]” while they were in his sister’s car. Doe
continued crying as she described the incident.
       Salinas Police Officer Robert Zuniga responded to Doe’s 9-1-1 call. Officer
Zuniga met Doe outside of the police department at 11:44 a.m. and then brought her
inside, where he interviewed her. Doe was crying, and her eyes were red. She had
“significant injuries to her face.” Specifically, she had “significant bruising” on the left
side of her face underneath her eye, which was beginning to cause discoloration. Doe
told Officer Zuniga that defendant had slapped her in the face and struck her multiple
times earlier that morning. Defendant had been telling her to “look him in the eyes,”
and she had not. Doe said she was afraid of defendant because he had assaulted her on
prior occasions.
       According to Doe, the incident had occurred in defendant’s vehicle, which had
been parked in front of defendant’s residence. The incident had begun at about
10:00 a.m. and had continued until around 11:30 a.m. During the incident, defendant had
taken Doe’s phone and purse. After the incident, defendant had said to Doe, “Look what
you did. This is your fault. Now we can’t be together.” Defendant had then left to go
buy cigarettes.
       Following the incident, Doe went into defendant’s residence and showed his sister
her injuries. Doe’s mother also observed Doe after the incident. Doe had a black eye, a
bruise on her arm, and bruises on her hands and wrist.
       B.       Firearm, Ammunition, and Resisting Incident2
       After Doe’s interview, police officers went to defendant’s home. On the way
there, the officers saw defendant and stopped to contact him. Defendant fled and was
observed taking a black object out of his waistband. The officers deployed their Tasers


       2
           The facts relating to these counts are taken from the probation report.


                                               3
on defendant and found that he was in possession of a stolen handgun and three
magazines loaded with .22-caliber ammunition.
        C.     Violations of Protective Order
        A protective order prohibiting defendant from contact with Doe issued on June 11,
2013.
        Doe visited defendant in jail on September 14, September 21, October 12, and
November 2, 2013. Defendant called Doe from jail on June 1, June 2, and June 3, 2013,
and he called her 23 or 24 times from September 5, to November 10, 2013.
        Transcripts from several of the jail calls were introduced into evidence. In a call
on June 1, 2013, defendant told Doe, “They got me,” and asked her, “Are you happy
now?” Defendant told Doe that she could have said that her fight had been with a woman
named Becky. Defendant told Doe that he loved her. Doe said that she loved him too
and that “[t]his is not what I wanted to happen at all.” Defendant and Doe apologized to
one another. Defendant acknowledged that he had “made a mistake.” Doe referred to
what defendant had done to her face and asked, “Why did you hurt me?” Defendant
responded, “Because I love you so much, and it hurts me.” Defendant referred to Doe
having disrespected and deceived him. Doe informed defendant that she had told the
police he had slapped her. Defendant responded, “So then you told them that I did
something.”
        In another call, Doe told defendant that she had gone to the police station after the
incident because she was tired of him hitting her. She told defendant that he had hurt her
“bad this time” and that her whole face was numb. Defendant responded, “Numb?”
Defendant told Doe that he felt “betrayed” by her. Doe later reiterated that she was in
pain and that her whole face was sore. She reminded defendant that he had hit her and
asked, “[H]ow was that anything different?” Defendant responded, “You forget what you
told me earlier?”



                                              4
       In a third call, defendant told Doe that he needed to know whether to prepare to let
her go, and he asked if Doe was going to show him that she loved him or show him that
she did not. Doe asked how defendant wanted her “to show it” and suggested he meant
“[t]o be by your side or whatevers.” Defendant agreed.
       In a fourth call, defendant asked Doe if she was going to “try to make things
better?” Doe asked how to do that. Defendant indicated Doe should show him “that
you’re really tryin’ to get me outta here.” Doe indicated that she was scared, “tired of
getting beat up” by him, and tired of him hitting her. Defendant responded, “Are you
looking at what you’re do[ing]?”
       D.     Doe’s Preliminary Hearing Testimony
       Doe testified at defendant’s preliminary hearing, which was held on December 13,
2013. Her preliminary hearing testimony was admitted at trial.
       As of June 1, 2013, Doe had known defendant for a year. Doe acknowledged that
she had made a police report regarding an injury to her face, but when asked why, she
replied, “I don’t know. I don’t know. I don’t recall.” Doe testified she had gone to the
police department “for advice” on “[r]elationships.” The trial court then permitted the
prosecution to treat Doe as a hostile witness. Doe denied that she had gone to the police
for advice about “violence in the relationship,” but she acknowledged she had gone for
advice about “[a]rguing” and “[w]hat was right and wrong.” Doe indicated she had been
mad at defendant for arguing, and she acknowledged that defendant had told her to look
at him when he was talking to her, but she denied that defendant had hit her during the
argument or taken her phone. Doe also denied there had been any prior violence in the
relationship, although there had been prior arguing.
       Doe testified that she and defendant had lived together at defendant’s mother’s
house for “[a]pproximately six months or something,” but she did not know “exactly
when.” Doe then clarified, “I don’t know if you would consider that living because I
would just spend the night, go home, take a shower.” Doe also kept clothing at

                                             5
defendant’s house. She described “home” as her parents’ house. Ultimately, Doe agreed
with the prosecutor that she lived part-time with defendant.
         Doe admitted that she had been in contact with defendant since the time of his
arrest, including talking to him numerous times on the phone. Doe acknowledged
listening to some of the recorded calls with an investigator, and one of the calls was
played at the preliminary hearing. Doe also admitted she had gone to visit defendant in
jail.
         On cross-examination, Doe testified that within about a week of the June 1, 2013
incident, she had caught defendant with another woman. Referring to the recorded jail
call that was played at the preliminary hearing, Doe testified that she was referring to her
feelings when she told defendant that he had “hurt” her. Doe agreed with defendant’s
trial counsel that specifically, she was “referring to the fact that he hurt [her] by being
with” the other woman. At that point, the trial court found that Doe was “so aligned with
the defendant” that it would not allow any further leading questions by the defense on
cross-examination. The defense was allowed to “do a direct examination” instead.
         On further questioning by defendant’s trial counsel, Doe testified that during the
jail phone call, she had apologized for “putting [defendant] in jail.” She could not recall
if she had been in a physical altercation with anyone other than defendant in the days
before his arrest. When asked how she received the injuries, Doe testified, “Ran into a
pole.”
         After the above testimony, Doe was excused subject to recall. Officer Zuniga then
testified about statements Doe made during his interview with her at the police station.
Doe told him that she had been physically assaulted by defendant and told him details of
the argument that preceded the physical assault.
         E.     Domestic Violence Expert
         Deborah Jacroux, a licensed marriage and family counselor, testified at trial. She
described the “[c]ycle of violence” that can exist in a relationship. The cycle may begin

                                               6
with a “honeymoon period,” after which tension will build and “abusive emotional
behavior” will occur. An act of violence may follow, and the cycle then repeats itself.
       A person may stay in a relationship with such a dynamic for several reasons. The
cycle may seem normal because the person has grown up in a family with the same
dynamic. The abuser may apologize. The person may need financial support from the
abuser. The honeymoon phase may give the person hope.
       Victims of domestic violence often do not report the abuse because of fear of
retaliation. Victims may also provide an initial report but then refuse to cooperate with
law enforcement because they begin to feel guilty and worry about supporting their
family.
       F.     Charges, Pleas, Verdicts, and Sentence
       Defendant was charged with inflicting corporal injury on a cohabitant (§ 273.5,
subd. (a); count 1), possession of a concealed firearm by a person who had a prior
felony conviction (§ 25400, subd. (a)(2); count 2), carrying a loaded firearm (§ 25850,
subd. (a)); count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4),
possession of ammunition by a felon (§ 30305, subd. (a)(1); count 5), resisting,
obstructing, or delaying a peace officer (§ 148, subd. (a)(1); count 6), battery on a person
with whom he had a dating relationship (§ 243, subd. (e)(1); count 7), and 20 counts of
violating a protective order (§ 166, subd. (c)(1); counts 8-27). The information further
alleged that defendant had a prior conviction of assault with a deadly weapon that
qualified as a strike. (§ 1170.12, subd. (c)(1).)
       A jury trial began on February 10, 2014. On February 13, 2014, defendant
pleaded no contest to the firearm and ammunition counts (counts 2 through 5) and to
resisting, obstructing, or delaying a peace officer (count 6). The jury subsequently
convicted defendant of the remaining counts: corporal injury on a cohabitant (§ 273.5,
subd. (a); count 1), battery on a person with whom he had a dating relationship (§ 243,



                                              7
subd. (e)(1); count 7), and violating a protective order (§ 166, subd. (c)(1); counts 8-27).
The trial court found true the strike allegation (§ 1170.12, subd. (c)(1)).
       At the sentencing hearing held on April 4, 2014, the trial court imposed an
aggregate prison term of seven years four months. The trial court imposed a three-year
term for count 1, doubled to six years under the Three Strikes law, with a consecutive
term of 16 months for count 2. The trial court stayed counts 3 through 5 pursuant to
section 654, and it imposed concurrent 365-day terms for counts 6 through 27.

                                   III.   DISCUSSION
       A.     Admission of Doe’s Prior Statements
       Defendant challenges the admission of Doe’s prior statements—her 9-1-1 call, her
statements to Officer Zuniga, and her preliminary hearing testimony—on a number of
grounds. Defendant also challenges the admission of the jail phone calls.
              1.     Proceedings Below
       The prosecution moved to admit Doe’s preliminary hearing testimony pursuant to
Evidence Code section 1291 [prior testimony] and Evidence Code section 1294 [prior
inconsistent statements admitted in prior hearing]. The prosecution represented that Doe
was unavailable under Evidence Code section 240 because she was avoiding service
despite the exercise of due diligence. The prosecution also moved to admit Doe’s 9-1-1
call pursuant to Evidence Code section 1280 [record by public employee] and Evidence
Code section 1240 [spontaneous statement].
       Defendant objected to the admission of Doe’s prior statements as violating his
Sixth Amendment right of confrontation. Defendant asserted that although he had cross-
examined Doe at the preliminary hearing, his cross-examination had been cut short and
thus it was not “complete and adequate.” Defendant also argued that Doe’s prior
inconsistent statements were not admissible under Evidence Code section 1294 because
Doe had not been confronted with those statements at the preliminary hearing. Defendant



                                              8
further argued that the 9-1-1 call was testimonial and did not fall within a hearsay
exception. Additionally, defendant moved to exclude the jail phone calls as hearsay and
pursuant to Evidence Code section 352.
       The trial court found that Doe was unavailable, that the defense had an “adequate
and appropriate opportunity” to cross-examine Doe during the preliminary hearing, that
Doe’s preliminary hearing testimony and prior statements were admissible, and that the
jail phone calls were non-testimonial and constituted admissions of a party opponent.
              2.      Testimonial Statements
       Defendant first contends Doe’s preliminary hearing testimony and statements to
Officer Zuniga constituted testimonial hearsay that was inadmissible at trial because
defendant did not have an adequate prior opportunity to cross-examine Doe at the
preliminary hearing. We will apply the independent standard of review in analyzing this
claim. (See People v. Seijas (2005) 36 Cal.4th 291, 304 [independent standard of review
is applied to a claim that “affects the constitutional right of confrontation”].)
       In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the high Court held
that the term “testimonial,” for purposes of the confrontation clause, “applies . . . to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations” (id. at p. 68) and that a victim’s statement “knowingly given in response
to structured police questioning” qualified as “testimonial” (id. at p. 53, fn. 4). The
Crawford court further held that under the Sixth Amendment, “testimonial evidence” is
inadmissible unless the witness is unavailable and the defendant had “a prior opportunity
for cross-examination.” (Id. at p. 68.) The critical question, for purposes of both the
confrontation clause and the hearsay exception for former testimony (Evid. Code, § 1291)
“is whether the previous opportunity for cross-examination was effective.” (People v.
Jones (1998) 66 Cal.App.4th 760, 766 (Jones).)
       Defendant relies on People v. Brock (1985) 38 Cal.3d 180 (Brock) to support his
claim that he did not have an adequate opportunity to cross-examine Doe at the

                                               9
preliminary hearing. In Brock, the witness was in the hospital at the time of her
preliminary hearing, during which the prosecution introduced a prior statement the
witness had made to police. By the time the defendant cross-examined her, the witness’s
“condition had deteriorated to such an extent that defense counsel terminated his
examination after only three questions.” (Id. at p. 186.) By the time of trial, the witness
had passed away, but the prosecution was permitted to introduce her preliminary hearing
testimony, including the prior statement.
       The California Supreme Court held that the trial court should not have permitted
the prosecution to introduce the witness’s preliminary hearing testimony. The court
noted that the witness’s condition had “forced defense counsel to abandon significant
opportunities to defeat introduction of her [prior] statement” and “foreclosed [him] from
any attempt to develop aspects of [her] direct testimony and prior statements which were
favorable to the defense.” (Brock, supra, 38 Cal.3d at p. 197.) Moreover, the witness,
who had made three prior inconsistent statements before the preliminary hearing, “was
never confronted with the contradictions in her recollection or examined at all with
respect to the substance of the three statements.” (Ibid.) The witness had not adopted
“one of the versions of events” or explained the inconsistencies, and thus, “the jury had
no basis for determining which of the statements was true.” (Ibid.)
       The instant case is distinguishable from Brock. Here, Doe was not unable to
answer questions at the preliminary hearing, and defendant was permitted to ask Doe an
unlimited number of questions on cross-examination. Although the defense was
eventually precluded from asking Doe leading questions, that restriction was put into
place because Doe’s testimony was “aligned with the defendant.” Significantly, before
the court imposed that restriction, Doe had already denied that defendant had committed
any violence against her—that is, she had given valuable testimony favoring the defense.
Doe had also already explained why she had made up her initial allegations of violence
(i.e., she had caught defendant with another woman), and she had explained that she was

                                             10
merely referring to her feelings about defendant being with the other woman when she
said that defendant had “hurt” her. Even after the restriction on cross-examination, Doe
gave further testimony that was valuable to the defense, including attributing her injuries
to running into a pole. Thus, unlike in Brock, Doe was confronted with the contradictions
in her prior statements and was able to explain the inconsistencies. (See Brock, supra, 38
Cal.3d at p. 197.)
       Defendant has not shown that his cross-examination of Doe at the preliminary
hearing “would have been any more effective” had he not been required to ask Doe non-
leading questions. (See Jones, supra, 66 Cal.App.4th at p. 768.) We therefore conclude
that the trial court did not violate defendant’s Sixth Amendment confrontation rights by
admitting Doe’s preliminary hearing testimony or her statements to Officer Zuniga into
evidence.
              3.     Doe’s Prior Statements
       Defendant next contends the trial court erred by admitting Doe’s statements to
Officer Zuniga pursuant to Evidence Code section 1294.3 Defendant contends that in
order for Doe’s prior statements to be admitted at trial, a transcript or recording of Doe’s
prior statements had to have been introduced into evidence at the preliminary hearing.




       3
        Evidence Code section 1294 provides: “(a) The following evidence of prior
inconsistent statements of a witness properly admitted in a preliminary hearing or trial of
the same criminal matter pursuant to [Evidence Code] Section 1235 is not made
inadmissible by the hearsay rule if the witness is unavailable and former testimony of the
witness is admitted pursuant to [Evidence Code] Section 1291: [¶] (1) A video recorded
statement introduced at a preliminary hearing or prior proceeding concerning the same
criminal matter. [¶] (2) A transcript, containing the statements, of the preliminary
hearing or prior proceeding concerning the same criminal matter. [¶] (b) The party
against whom the prior inconsistent statements are offered, at his or her option, may
examine or cross-examine any person who testified at the preliminary hearing or prior
proceeding as to the prior inconsistent statements of the witness.”


                                             11
       Defendant relies on People v. Martinez (2003) 113 Cal.App.4th 400 (Martinez).
In Martinez, the court explained that Evidence Code section 1294 was enacted to allow
“ ‘the statement of a person, who is unavailable as a witness, to be introduced as evidence
in court if the statement was previously introduced at a hearing or trial as a prior
inconsistent statement of the witness.’ [Citations.]” (Martinez, supra, at pp. 408-409.)
       Martinez involved the admission of a recorded statement by a non-testifying
accomplice to the police. The accomplice had testified at the preliminary hearing but was
found unavailable for trial. The Martinez court held that the trial court should not have
permitted the jury to hear the recording of the accomplice’s statement to the police,
because no transcript or a recording of that statement had been introduced as evidence at
the preliminary hearing. (Martinez, supra, 113 Cal.App.4th at p. 409.)
       As the Attorney General contends, defendant failed to raise this specific point
below. (See Evid. Code, § 353, subd. (a) [a timely objection or motion on a “specific
ground” is a prerequisite for asserting error concerning the admission of evidence].) In
the trial court, defendant asserted that Doe’s statements to Officer Zuniga were
inadmissible because Doe was not “confronted with the prior inconsistent statement” at
the preliminary hearing. Defendant is now raising a different argument—that a transcript
or recording of Doe’s prior inconsistent statement had to have been introduced at the
preliminary hearing.
       In this case, Doe’s statements to Officer Zuniga were introduced as prior
inconsistent statements at the preliminary hearing, through Officer Zuniga’s testimony.
The statements were introduced through Officer Zuniga’s testimony at trial as well. Had
defendant objected at trial, the prosecution could have presented Doe’s prior inconsistent
statements through the transcript of Officer Zuniga’s preliminary hearing testimony.
Under the circumstances, the forfeiture rule applies because without an objection, the
prosecution had no such “opportunity to cure the defect.” (See People v. Coleman (1988)
46 Cal.3d 749, 777.)

                                             12
              4.     Instruction on Prior Statements
       Defendant contends Doe’s statements to Officer Zuniga were admissible only as
impeachment of Doe’s preliminary hearing testimony and that, therefore, the trial court
erred by instructing the jury that those statements were admissible for their truth.
       Pursuant to CALCRIM No. 318, the trial court instructed the jury: “You have
heard evidence of statements that a witness made before the trial. If you decide that the
witness made those statements, you may use those statements in two ways. First, to
evaluate whether the witness’s testimony in court is believable; and second, as evidence
that the information in those earlier statements is true.”
       Defendant did not object to this instruction in the trial court or request that the trial
court give an alternative instruction. Defendant argues, however, that this court should
not find the issue forfeited. Defendant cites section 1259, which permits the appellate
court to “review any instruction given, refused or modified, even though no objection
was made thereto in the lower court, if the substantial rights of the defendant were
affected thereby.” We will assume that the asserted error affected defendant’s substantial
rights and address the merits of his claim.
       Defendant acknowledges that Evidence Code section 1235 permits a witness’s
prior inconsistent statement to be used as substantive evidence. (See People v. Johnson
(1992) 3 Cal.4th 1183, 1219.) Defendant points out that Evidence Code section 1235
applies only to a witness at trial, not to a hearsay declarant.4 Defendant cites People v.
Blacksher (2011) 52 Cal.4th 769 (Blacksher), in which the court held that statements of a
hearsay declarant that are admitted to attack the declarant’s credibility under Evidence



       4
         Evidence Code section 1235 provides: “Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is inconsistent with
his [or her] testimony at the hearing and is offered in compliance with [Evidence Code]
Section 770.”


                                              13
Code section 12025 are not admissible for their truth if the declarant does not testify at
trial. (Blacksher, supra, at p. 808.) However, the Blacksher court did not consider
whether a statement admitted pursuant to Evidence Code section 1294 is admissible for
its truth, so that case is not helpful.
       The Attorney General points out that Evidence Code section 1294 provides that
evidence of prior statements made at a preliminary hearing is “not made inadmissible by
the hearsay rule,” without using qualifying language such as “for the purpose of attacking
the credibility of the declarant,” which is used in Evidence Code section 1202. The
Attorney General points out that the relevant language of Evidence Code section 1294 is
thus “identical” to the language of Evidence Code section 1235, which permits prior
inconsistent statements to be considered for their truth.
       We agree with the Attorney General that under principles of statutory
interpretation, evidence admitted under Evidence Code section 1294 may be considered
for its truth. “ ‘It is an established rule of statutory construction that similar statutes
should be construed in light of one another [citations], and that when statutes are in pari
materia similar phrases appearing in each should be given like meanings. [Citations.]’
[Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 525.)
       In providing that evidence of a prior inconsistent statement admitted at a
preliminary hearing “is not made inadmissible by the hearsay rule”—without
qualification—in Evidence Code section 1294, the Legislature used identical language to
that in Evidence Code section 1235, which permits a prior inconsistent statement of a

       5
         Evidence Code section 1202 provides in pertinent part: “Evidence of a statement
or other conduct by a declarant that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not inadmissible for the purpose of attacking
the credibility of the declarant though he [or she] is not given and has not had an
opportunity to explain or to deny such inconsistent statement or other conduct. Any other
evidence offered to attack or support the credibility of the declarant is admissible if it
would have been admissible had the declarant been a witness at the hearing.”


                                               14
witness to be considered for its truth. Thus, evidence admitted pursuant to Evidence
Code section 1294 may also be considered for its truth. This construction of the statute
also comports with the apparent intent of the Legislature in enacting Evidence Code
section 1294 and makes logical sense. The Legislature could not have intended that prior
inconsistent statements admitted as substantive evidence at the preliminary hearing
(pursuant to Evidence Code section 1235) not be admissible as substantive evidence at
trial. (See Martinez, supra, 113 Cal.App.4th at p. 409 [“Evidence Code section 1294
appears to have been designed to overcome the admissibility problems associated with
out-of-court statements which are inconsistent with an unavailable witness’s former
testimony”]; id. at p. 411 [error in admitting recording of unavailable witness’s statement
to the police was harmless where witness’s other prior inconsistent statements were
admitted at trial through preliminary hearing testimony of officer].)
       We conclude the trial court did not err by instructing the jury that Doe’s
statements to Officer Zuniga were admissible for their truth as well as for impeachment
of her preliminary hearing testimony.
              5.      9-1-1- Call
       Defendant contends Doe’s 9-1-1 call was inadmissible testimonial hearsay under
Crawford, supra, 541 U.S. 36 and that the call was not admissible as a spontaneous
statement under Evidence Code section 1240.
       As described above, Doe called 9-1-1 and told the dispatcher she wanted to report
“a domestic violence.” She reported that the incident had been “very physical” and that
she had bruises on her face. Doe said she did not need an ambulance, explaining, “I’m
fine. A little shaken up, that’s all.” When asked when the incident had occurred, Doe
responded, “Today, earlier today. It’s . . . it’s been . . . it’s been happening off and on,
and I never really reported it.” She named defendant as the perpetrator and began crying.
Doe explained that she and defendant had been arguing, and that defendant had “just



                                              15
started hitting [her]” while they were in his sister’s car. Doe continued crying as she
described the incident.
              a.     The 9-1-1 Call Was Not Testimonial
       In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme
Court held that an interrogation that took place during a 9-1-1 call did not produce
testimonial statements. The court explained that a 9-1-1 call “is ordinarily not designed
primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances
requiring police assistance.” (Id. at p. 827.) In that particular case, several factors
supported a finding that the victim’s statements to the 9-1-1 dispatcher were, indeed, non-
testimonial. First, the victim was “speaking about events as they were actually
happening, rather than ‘describ[ing] past events,’ [citation].” (Ibid.) Second, the
victim’s statements indicated she was “facing an ongoing emergency” rather than
“provid[ing] a narrative report of a crime absent any imminent danger.” (Ibid.) Third,
the questions that resulted in the elicited statements were those “necessary to be able to
resolve the present emergency, rather than simply to learn . . . what had happened in the
past.” (Ibid.) Fourth, the victim provided “frantic answers” rather than calm responses,
“in an environment that was not tranquil, or even (as far as any reasonable 911 operator
could make out) safe.” (Ibid.) Because the circumstances objectively indicated that the
primary purpose of the 9-1-1 “was to enable police assistance to meet an ongoing
emergency,” the victim’s statements during the call were not testimonial. (Id. at p. 828.)
       Defendant contends that in this case, the 9-1-1 call was testimonial because there
was no ongoing emergency or threat, and because Doe was already at the police station—
a place of safety—at the time she made the call.
       Similar arguments were rejected in People v. Saracoglu (2007) 152 Cal.App.4th
1584 (Saracoglu). In that case, the victim went to the police station following an assault
by the defendant, which involved choking, pushing, hitting, and a threat to kill the victim
if she went to the police. Officers responded to the police station and spoke with the

                                              16
victim, who was “nervous, crying and shaking” as she described the incident. (Id. at
p. 1587.) The defendant argued that the victim’s statements were testimonial. He
pointed out that the interview occurred about 30 minutes after the incident and argued
that “ ‘there was no ongoing emergency and there was no imminent threat of danger’ ”
because the victim was “ ‘in the safety of the police station.’ ” (Id. at p. 1596.)
       The Saracoglu court held that the victim’s trip to the police station was “the
functional equivalent of making a 911 call” under the circumstances. (Saracoglu, supra,
152 Cal.App.4th at p. 1597.) The court further held that the emergency was ongoing
despite the fact the victim had gone to the police station, explaining: “The safety of the
station house was only temporary because [the victim] could not go home again until the
situation was resolved.” (Ibid.) Moreover, the emergency was ongoing because the
defendant had threatened to kill the victim if she went to the police. (Ibid.) The court
concluded that the victim’s statements were non-testimonial: “Objectively viewed, the
primary purpose of [the victim’s] initial interrogation by [an officer] was ‘to deal with a
contemporaneous emergency, rather than to produce evidence about past events for
possible use at a criminal trial.’ [Citation.]” (Ibid.)
       Objectively viewed, the circumstances of the instant case indicate that the purpose
of the 9-1-1 call was “not to establish or prove past facts for possible criminal use,” but to
help the 9-1-1 dispatcher respond to an ongoing emergency. (See People v. Cage (2007)
40 Cal.4th 965, 986.) Although Doe went to the police station to make the 9-1-1 call, the
police station was closed and thus was not necessarily a place of safety. Moreover, Doe
went to the police station to make the call because defendant had taken her phone,
leaving her without a means of obtaining immediate assistance. The incident had ended
less than 15 minutes before the 9-1-1 call, and defendant had only left to get cigarettes, so
it was likely he would have returned soon had Doe not gone to the police station. The
fact that Doe cried throughout the 9-1-1 call indicated that her call “was plainly a call for
help against a bona fide physical threat.” (Davis, supra, 547 U.S. at p. 827.) During the

                                              17
call, the dispatcher did no more than “elicit[] the information he [or she] needed to
understand [Doe’s] situation and to take action ‘to resolve the present emergency.’
[Citation.]” (Saracoglu, supra, 152 Cal.App.4th at p. 1598.)
       We conclude Doe’s 9-1-1 call was not testimonial and thus not made inadmissible
by the confrontation clause of the Sixth Amendment.
               b.    The 9-1-1 Call was Admissible as a Spontaneous Statement
       Under Evidence Code section 1240, “[e]vidence 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.”
       Defendant contends that Doe’s 9-1-1 call was not spontaneous because it was
made after Doe showed her injuries to defendant’s sister and went to the police station.
He argues “there was ample time for Doe to contrive the statements she made when she
called 911.”
       “The decision to admit evidence under Evidence Code section 1240 is reviewed
for abuse of discretion. [Citation.]” (Saracoglu, supra, 152 Cal.App.4th at p. 1588.)
In Saracoglu, the court found the victim’s statements spontaneous even though the
incident had occurred about 30 minutes earlier, noting that “[m]uch longer periods of
time have been found not to preclude application of the spontaneous utterance hearsay
exception. [Citations.]” (Id. at p. 1589.) The Saracoglu court also held that the victim’s
statements were made while she was still under the stress of excitement, rather than after
an opportunity to deliberate and reflect, and despite the fact the statements were made in
response to police questioning. (Id. at pp. 1589-1590.) The court explained, “The crucial
issue is the declarant’s mental state and the evidence shows [the victim] was quite
distraught; when [the officer] initially encountered her at the police station, she was
crying, shaking and fearful.” (Id. at p. 1590.)

                                             18
       In the instant case, only about 15 minutes had passed since the incident had ended.
Based on Doe’s demeanor and statements, the trial court could reasonably find that she
was still under the stress of excitement when she called 9-1-1. We find no abuse of
discretion in the trial court’s determination that the 9-1-1 call was admissible under
Evidence Code section 1240.
              6.      Jail Calls
       Defendant contends the phone calls between defendant and Doe were inadmissible
hearsay and more prejudicial than probative under Evidence Code section 352.
       As detailed above, transcripts from several of the jail calls were introduced into
evidence. In one call, defendant suggested that Doe could have told the police that her
injuries were due to another woman instead of him. Defendant apologized and
acknowledged that he had “made a mistake.” After Doe referred to what defendant had
done to her face and asked why he had hurt her, defendant responded, “Because I love
you so much, and it hurts me.” In another call, Doe told defendant that she had gone to
the police station after the incident because she was tired of him hitting her. Defendant
failed to explain or deny her accusations. Defendant similarly failed to explain or deny
Doe’s accusations in another call, during which she claimed she was scared and “tired of
getting beat up” by him and tired of him hitting her.
              a.      Evidence Code sections 1220 and 1221
       Defendant acknowledges that his own statements in the jail phone calls were
“potentially admissible” under Evidence Code section 1220, which permits introduction
of admissions by a party, and he presents no argument on that issue.6 Defendant further



       6
         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 [or she] is a party in either his [or her] individual or representative capacity, regardless
of whether the statement was made in his [or her] individual or representative capacity.”


                                              19
acknowledges that if he adopted any of Doe’s statements by his words or conduct, those
statements could be admissible under Evidence Code section 1221, which permits
evidence of adoptive admissions.7 Defendant argues, however, that he did not adopt any
of Doe’s statements.
       We review the trial court’s ruling for abuse of discretion. (People v. Chism (2014)
58 Cal.4th 1266, 1297 (Chism).) Under Evidence Code section 1221, “ ‘If a person is
accused of having committed a crime, under circumstances which fairly afford him [or
her] an opportunity to hear, understand, and to reply, and which do not lend themselves to
an inference that he [or she] was relying on the right of silence guaranteed by the Fifth
Amendment to the United States Constitution, and he [or she] fails to speak, or he [or
she] makes an evasive or equivocal reply, both the accusatory statement and the fact of
silence or equivocation may be offered as an implied or adoptive admission of guilt.’
[Citations.] . . . ‘When a person makes a statement in the presence of a party to an action
under circumstances that would normally call for a response if the statement were untrue,
the statement is admissible for the limited purpose of showing the party’s reaction to it.
[Citations.] His [or her] silence, evasion, or equivocation may be considered as a tacit
admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000)
22 Cal.4th 1153, 1189.)
       In this case, defendant’s responses to Doe’s accusations during the jail phone calls
included direct admissions as well as evasive responses, which under the circumstances
“manifested his adoption of” those accusations. (Chism, supra, 58 Cal.4th at p. 1297.)




       7
         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 [or her] adoption or his [or her] belief in its truth.”


                                             20
The trial court therefore did not abuse its discretion by determining that Doe’s statements
during the jail phone calls were admissible under Evidence Code section 1221.
                 b.     Evidence Code section 352
          Defendant contends that even if the jail phone calls were admissible under
Evidence Code sections 1220 and 1221, the trial court erred by declining to exclude them
pursuant to Evidence Code section 352.8 Specifically, defendant contends the trial court
failed to demonstrate that it “properly weigh[ed] the probative value against the potential
for undue prejudice.”
          “ ‘[W]hen ruling on a [Evidence Code] section 352 motion, a trial court need not
expressly weigh prejudice against probative value, or even expressly state that it has done
so. All that is required is that the record demonstrate the trial court understood and
fulfilled its responsibilities under . . . [Evidence Code] section 352.’ [Citations.]”
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1315 (Jennings).) Thus, a trial court is
not required “to articulate its consideration of each of a list of particular factors of
probability and prejudice in making a decision under [Evidence Code] section 352.”
(Ibid.)
          In this case, defendant sought to exclude the jail phone calls during motions in
limine, expressly referencing Evidence Code section 352. During the hearing on
motions in limine, the trial court expressly indicated it understood that defendant was
seeking to exclude the jail phone calls based on “undue prejudice under [Evidence Code
section] 352.” The trial court later found that the jail phone calls were “relevant” and
“admissible.” This record thus demonstrates that “ ‘the trial court understood and



          8
        Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”


                                               21
fulfilled its responsibilities under . . . [Evidence Code] section 352.’ [Citations.]”
(Jennings, supra, 81 Cal.App.4th at p. 1315.)
       The trial court also did not abuse its discretion by determining that the probative
value of the jail phone calls was not substantially outweighed by the probability that the
calls would create a substantial danger of undue prejudice. (See People v. Suff (2014)
58 Cal.4th 1013, 1066.) “ ‘For purposes of Evidence Code section 352, evidence is
considered unduly prejudicial if it tends to evoke an emotional bias against the defendant
as an individual and has a negligible bearing on the issues.’ [Citation.]” (Id. at p. 1073.)
The jail phone calls had significant probative value in explaining why Doe changed her
story by the time of the preliminary hearing, as they showed the relationship dynamic
between Doe and defendant. The jail phone calls also had significant probative value
because they contained defendant’s adoptive admissions regarding the charged offenses.
Contrary to defendant’s claim, the fact that defendant was in jail at the time of the calls
was not so irrelevant or prejudicial as to outweigh the probative value of the calls,
particularly since the jury was instructed, pursuant to CALCRIM No. 220, that it must
not be biased against defendant just because he was arrested and charged with a crime.
And although in one phone call Doe’s comments could be construed as a reference to a
concern or prior threat that defendant would kill her, defendant never sought to redact
that transcript despite the trial court’s indication that it would consider an Evidence Code
section 352 argument as to specific statements in the calls.
       In sum, we conclude the trial court did not err by admitting the jail phone calls
into evidence.




                                              22
       B.     Sufficiency of the Evidence – Cohabitation
       Defendant contends there was insufficient evidence to support the jury’s finding
that Doe was a “cohabitant” of defendant. (See § 273.5, subd. (b)(2).)9
       “The law we apply in assessing a claim of sufficiency of the evidence is well
established: ‘ “ ‘ “[T]he court must review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that 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 could
reasonably deduce from the evidence.’ [Citation.]” (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 294 (Gonzales).)
       The jury in this case was instructed on the definition of the term “cohabitants”
pursuant to CALCRIM No. 840 as follows: “The term ‘cohabitants’ means two unrelated
persons living together for a substantial period of time, resulting in some permanency of
the relationship. [¶] Factors that may determine whether people are cohabiting include,
but are not limited to: [¶] One, sexual relations between the parties while sharing the
same residence; two, sharing of income or expenses; three, joint use or ownership of
property; four, the parties holding themselves out as husband and wife; five, the
continuity of the relationship; and six, the length of the relationship. [¶] A person may
cohabitate simultaneously with two or more people at different locations during the same



       9
         Section 273.5, subdivision (b) lists several categories of persons who can be a
“victim” for purposes of subdivision (a): “(1) The offender’s spouse or former spouse.
[¶] (2) The offender’s cohabitant or former cohabitant. [¶] (3) The offender’s fiancé or
fiancée, or someone with whom the offender has, or previously had, an engagement or
dating relationship . . . . [¶] (4) The mother or father of the offender’s child.”
       In this case, the jury was instructed that defendant was charged with inflicting
corporal injury specifically “on his current or former cohabitant.”


                                             23
time frame if he or she maintains substantial ongoing relationship with each person and
lives with each person for significant periods.”
       The above definition of “cohabitants” is taken from People v. Holifield (1988)
205 Cal.App.3d 993, 1001 (Holifield) and People v. Moore (1996) 44 Cal.App.4th 1323,
1335 (Moore). In each case, the appellate court upheld a jury’s finding of cohabitation.
       In Holifield, the defendant stayed with the victim off and on for three months.
(Holifield, supra, 205 Cal.App.3d at p. 996.) The defendant “took his clothes and other
belongings with him each time he left,” and the couple “did not share rent, have a joint
bank account, make joint purchases or hold themselves out as husband and wife.” (Ibid.)
The couple had “ ‘infrequent’ ” sex, and the victim described their relationship as
“friends and roommates,” though she had romantic feelings for the defendant. (Ibid.)
The appellate court concluded that the evidence established “an intimacy going well
beyond that of ordinary roommates,” which was sufficient to support the jury’s finding.
(Id. at p. 1002.)
       In Moore, the defendant and the victim were involved in a sexual relationship for
several years, they shared a lease on an apartment, and even after the defendant began
spending a significant amount of time with other girlfriends, he retained a key to the
apartment, kept his possessions there, and continued to have an intimate relationship with
the victim. (Moore, supra, 44 Cal.App.4th at p. 1335.) The appellate court found that
the defendant had maintained a “substantial relationship” with the victim, which was
sufficient to support a finding of cohabitation. (Ibid.)
       A finding of cohabitation under section 273.5, subdivision (a) was also upheld in
People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor). In that case, at the time of the
charged incident, the defendant and victim had been dating for about five months, and
the victim was 10 weeks pregnant with the defendant’s child. (Id. at p. 17.) The victim
was homeless and living with the defendant in his car. She testified that she had been
staying with her aunt “ ‘for a little while,’ ” but she would leave, meet up with defendant,

                                             24
and then “ ‘just be with him for a while.’ ” (Ibid.) The Taylor court explained, “Taken
in their totality, these facts were sufficient to establish that [the victim and defendant]
were living together in a substantial relationship that was characterized by permanence
and sexual or amorous intimacy. [Citation.]” (Id. at p. 19.) The court noted that
section 273.5 protected the couple despite the fact that their “living arrangements may
have been unstable or transitory,” and despite the fact that they “sometimes lived
separately with other relatives.” (Ibid.)
       In this case, Doe testified that she and defendant had lived together at defendant’s
house for “[a]pproximately six months or something,” but she did not know “exactly
when.” Doe then clarified, “I don’t know if you would consider that living because I
would just spend the night, go home, take a shower.” Doe also kept clothing at
defendant’s house. She described “home” as her parents’ house. Ultimately, Doe agreed
with the prosecutor that she lived part-time with defendant.
       Under the case law discussed above, the evidence here—viewed in the light most
favorable to the judgment (see Gonzales, supra, 52 Cal.4th at p. 294)—was sufficient to
support the jury’s finding of cohabitation under section 273.5, subdivision (a) in
accordance with the instruction given. Doe testified she had known defendant for about a
year and had been living with him for six months. This was a “substantial period of time,
resulting in some permanency of the relationship,” within the meaning of CALCRIM
No. 840. Doe also testified that she would spend the night at defendant’s residence, take
showers there, and keep clothing there—factors that supported a finding of cohabitation.
Contrary to defendant’s argument, the prosecution was not required to elicit evidence that
Doe maintained only one residence, kept her belongings at defendant’s home, used
defendant’s address for mail, or paid for rent or utilities. (See Holifield, supra, 205
Cal.App.3d at p. 996; see also People v. Belton (2008) 168 Cal.App.4th 432, 438
[evidence that victim and defendant did not share living expenses did not preclude a
finding of cohabitation].)

                                              25
       We conclude that substantial evidence supported the jury’s finding that defendant
and Doe were cohabitants at the time of the charged offenses.
       C.     Sufficiency of the Evidence – Strike Allegation
       Defendant contends there was insufficient evidence to support the trial court’s
finding that defendant’s prior conviction of assault, in violation of former section 245,
subdivision (a)(1), was a strike. Defendant argues that the record of his prior conviction
does not provide substantial evidence to support a finding that the conviction was under
the “deadly weapon” prong of former section 245, subdivision (a)(1) rather than the “by
means of force likely to produce great bodily injury” prong. (See People v. Delgado
(2008) 43 Cal.4th 1059, 1065 (Delgado).) Our review of this issue is performed by
examining the record “in the light most favorable to the judgment to ascertain whether it
is supported by substantial evidence.” (Id. at p. 1067.)
              1.      Evidence
       The evidence submitted in support of the strike allegation consisted of documents
from the record of defendant’s prior conviction, including an information, a minute order
from the change of plea hearing, and an abstract of judgment.
       The information alleged that on June 24, 2002, defendant committed “assault by
means of force likely to produce great bodily injury or with deadly weapon and
instrument in violation of Section 245(a) (1) of the Penal Code,” specifying that
defendant “did willfully and unlawfully commit an assault upon [the victim], with a
deadly weapon, to wit, screwdriver, and by means of force likely to produce great bodily
injury.” (Capitalization omitted.)
       The minute order from the change of plea hearing held on September 26, 2002
indicates that defendant entered a no contest plea to “ADW or assault w/force likely to
produce GBI” and contains the following notation: “The defendant understands that the
crime he/she is pleading to is a ‘serious’ or ‘violent’ felony, and as such is a ‘strike’
under the three strikes law.” (Capitalization omitted.)

                                              26
       The abstract of judgment indicates defendant was convicted of a violation of
former section 245, subdivision (a)(1) and describes that offense as “ADW or Assault
w/Force Likely to Produce GBI.”
              2.      Analysis
       In 2002, section 245, subdivision (a)(1) made it a felony offense to “commit[ ] an
assault upon the person of another with a deadly weapon or instrument other than a
firearm or by any means of force likely to produce great bodily injury.” (Stats. 1999,
ch. 129, § 1, italics added.)10
       “[A]ssault with a deadly weapon” is a serious felony (§ 1192.7, subd. (c)(31))
that qualifies as a strike (§ 1170.12, subd. (b)(1)). A crime in which the defendant
“personally inflicts great bodily injury on any person” (§ 1192.7, subd. (c)(8)) is also a
serious felony and thus a strike. However, “assault merely by means likely to produce
GBI [great bodily injury], without the additional element of personal infliction, is not
included in the list of serious felonies. Hence, . . . a conviction under the deadly weapon
prong of [former] section 245(a)(1) is a serious felony, but a conviction under the GBI
prong is not.” (Delgado, supra, 43 Cal.4th at p. 1065.) “[I]f . . . the record of the
conviction does not disclose how the offense was committed, a court must presume the
conviction was for the least serious form of the offense. [Citations.]” (Id. at p. 1066.)
       The shorthand description of a former section 245, subdivision (a)(1) conviction
contained in an abstract of judgment was held insufficient to prove the underlying
conduct in People v. Banuelos (2005) 130 Cal.App.4th 601 (Banuelos). The abstract
described the crime as “ ‘ASSAULT GBI W/DEADLY WEAPON.’ ” (Id. at p. 605.)



       10
         Section 245 has since been amended. Subdivision (a)(1) now references only
the crime of “assault . . . with a deadly weapon or instrument other than a firearm,” and
subdivision (a)(4) now references only “assault . . . by any means of force likely to
produce great bodily injury.” (See Stats. 2011, ch. 183, § 1.)


                                             27
The Banuelos court found that the abstract did not prove that the defendant had used a
deadly weapon in the prior conviction, rather than committing the assault by some other
means of force likely to produce great bodily injury. (Id. at p. 606.) The court reasoned
that the notation was ambiguous: while it “could be read to mean that the assault was
committed both by means of force likely to produce great bodily injury and with a deadly
weapon, it could also be construed as a shorthand description of the criminal conduct
covered by [former] section 245, subdivision (a)(1) – assault by means of force likely to
product great bodily injury or with a deadly weapon.” (Ibid.) The court found no
substantial evidence “that a deadly weapon was in fact used during the commission of
that offense.” (Ibid.)
       In Delgado, the California Supreme Court upheld a strike finding based on the
shorthand description of a former section 245, subdivision (a)(1) conviction contained in
an abstract of judgment. In that case, “[t]he abstract specified the statute violated as
‘[Penal Code section] 245(A)(1)’ and described the crime as ‘Asslt w DWpn.’ ”
(Delgado, supra, 43 Cal.4th at p. 1063.) The notation on the abstract contained no
reference to the great bodily prong of former section 245, subdivision (a)(1). The
Delgado court held that the abstract provided substantial evidence to support the trial
court’s finding that the prior conviction was for assault with a deadly weapon and thus
that it qualified as a strike. (Id. at p. 1069.) The Delgado court observed that one way to
ensure that “the serious felony nature of [an] offense” becomes “an explicit part of the
record of conviction” is if the accusatory pleading specifies that a charged offense
involves facts making it a serious felony. (Id. at p. 1072.) The court encouraged the use
of such a procedure. (Ibid.)
       In this case, the abstract of judgment indicates defendant was convicted of a
violation of former section 245, subdivision (a)(1) and describes that offense as “ADW
or Assault w/Force Likely to Produce GBI.” Thus, like in Banuelos, the abstract here is
ambiguous as to whether defendant’s conviction was under the deadly weapon prong or

                                             28
force likely prong of former section 245, subdivision (a)(1). However, other documents
comprising the record of the prior conviction provide substantial evidence to support the
trial court’s finding “that a deadly weapon was in fact used during the commission of that
offense.” (See Banuelos, supra, 130 Cal.App.4th at p. 606.) First, the accusatory
pleading—the information—did specify that the charged offense involved facts making it
a serious felony, i.e., one involving use of a deadly weapon. The information alleged that
in committing the assault, defendant used “a deadly weapon, to wit, screwdriver.”
(Capitalization omitted.) Additionally, the minute order from the change of plea hearing
held on September 26, 2002 indicates that, on the record, defendant acknowledged “that
the crime he/she is pleading to is a ‘serious’ or ‘violent’ felony, and as such is a ‘strike’
under the three strikes law.” (Capitalization omitted.)
       We conclude there was sufficient evidence to support the trial court’s finding
that defendant’s prior conviction of assault, in violation of former section 245,
subdivision (a)(1), was a strike.

                                    IV.   DISPOSITION
       The judgment is affirmed.




                                              29
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.
