THE PEOPLE, Plaintiff and Respondent, v. CHARLES JAMES AUSBURN, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Charles James Ausburn appeals the judgment entered following his conviction by jury of assault by means of force likely to produce great bodily injury. (Pen.Code, § 245, subd. (a)(1).) Ausburn contends the trial court committed sentencing error and erroneously refused to strike the testimony of the complaining witness after she asserted the right against self-incrimination with respect to matters related to her credibility. We reject these claims and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The prosecution's evidence.
On February 28, 2009, at 11:30 p.m., Carla Chambers went to Ausburn's apartment in Los Angeles. They had been dating for four years. Ausburn was upset that Chambers had not responded to his text messages. They argued and Ausburn said Chambers' cousin, Tina McKinnor, thought Ausburn was “the best thing that [had] ever happened to [Chambers].” When Chambers disagreed, Ausburn became enraged, called Chambers a “stupid bitch” and threatened to “fucking destroy [her].” Ausburn punched Chambers on the jaw, knocking her over a coffee table. Ausburn got on top of Chambers and repeatedly struck her face and the back of her head. Ausburn told Chambers, “I can kill you.” Ausburn then repeatedly kicked Chambers in the ribs. He threw a glass dish that grazed Chambers' forehead. Chambers screamed and Ausburn told her to “shut up,” mounted her, choked her with both hands and said, “I could kill you.” Chambers began to lose consciousness and pleaded for her life.
After Ausburn released Chambers, he began pacing and said, “I love you․ [W]hy do you make me do this to you?” Someone knocked on the door of the apartment. Ausburn grabbed Chambers and said, “I will kill you before the cops get the door open.” Ausburn looked through the peephole and said, “Hey, John.” John asked what was going on and Ausburn responded he had been rehearsing a scene. John said, “Man, I think somebody may have called the police.” Ausburn responded, “No, everything is okay.” Ausburn never opened the door and no one else knocked on the door while Chambers was in the apartment.
Ausburn sat on the floor in front of the door and said, “Oh, my God․ I'm going to lose my job․ Give me 24 hours before you go to the police.” Chambers said she had to check on her children and needed to go to a hospital because she was experiencing pain in her side. Chambers refused Ausburn's offer to drive her to the hospital but asked him to help her down the stairs. In the parking garage, Ausburn stood inside the open door and repeatedly asked Chambers for 24 hours.
When Chambers was able to drive from the garage at approximately midnight, she telephoned her uncle and asked him to check on her children. Chambers then called 911 and was directed to the nearest police station, arriving there at approximately 12:20 a.m. Chambers gave an initial statement to Los Angeles Police Officer Michael Friesenhahn. At 12:38 a.m., Chambers sent a text message to McKinnor asking her to come to the police station. Officer Friesenhahn photographed Chambers' injuries to her face. Her lip and ear were bleeding and she had marks on her throat. The next day, Chambers' side and arm were bruised and Chambers took pictures of the bruises. Chambers continues to suffer migraine headaches as a result of the attack. A few days after the incident, Chambers took a protective order to American Honda, where she and Ausburn worked.
Officer Friesenhahn testified Chambers said her boyfriend had hit her and she had come to report it. Chambers did not appear to be intoxicated. Chambers said she had been hit in the face and side. Chambers also said she had been “choked and she tried to scream for help.” Chambers complained of pain to her ribs but did not mention that Ausburn threw a glass object at her. Friesenhahn asked if Chambers needed an ambulance but she said she would go to the hospital on her own.
McKinnor testified Chambers was speaking to Friesenhahn when she arrived at the station at 1:00 a.m. Chambers was “bloody and shaken.”
2. Defense evidence.
Sandra Beane, the manager of Ausburn's apartment building on February 28, 2009, testified her apartment is located directly across from Ausburn's. On the evening of the incident, Beane was awakened by Ausburn and a woman yelling. Beane went to her balcony and was able to see a small portion of a couch in Ausburn's apartment. A woman with her arms folded was rocking back and forth on the couch. Beane heard the woman say, “I want to protect my heart.” The woman was doing most of the yelling. Beane did not hear any screaming for help but heard Ausburn ask the woman to be quiet.
Beane went to Ausburn's apartment with two neighbors, Jay Nichols and Melanie Vaget. Nichols knocked on Ausburn's door. Beane stood in the stairwell and was unable to see inside the apartment. When Ausburn opened the door, Nichols told Ausburn to “keep it down.” There were no calls for help from inside the apartment and no one tried to leave the apartment. Beane returned to her apartment and she heard approximately 10 minutes of more arguing. Beane telephoned Ausburn and said, “Hey, you got to keep it down.” Beane again looked into Ausburn's window and saw the woman still sitting there. The fighting ended shortly thereafter.
Melanie Vaget testified her apartment is next door to Ausburn's apartment and the apartments share a common wall. At approximately 11:30 p.m. on the night of the incident, Vaget heard “animated shouting. Most coming from a woman․” Vaget thought it sounded like a couple breaking up. Vaget heard the woman say, “My heart is hurt․ How could you do this to me?” Vaget heard a loud noise when something fell over, but heard no indication the woman was being attacked or hurt physically. Vaget, Nichols and Beane went to Ausburn's apartment to tell him everyone could hear what was happening and to see if he needed help. When Ausburn opened the door, Vaget saw Chambers standing behind him with her arms crossed. Chambers was not shouting or crying. Vaget saw no blood or injuries.
After Nichols finished speaking with Ausburn, Nichols and Vaget waited in the stairwell for 30 seconds and then returned to their apartment. The argument started again but was more subdued. Vaget heard the woman say, “I'm not going to let you do this to me, you're not going to get away with this․” “You're going to pay for this.” Later that evening, Vaget saw Ausburn and Chambers leaving. Ausburn had his arm around Chambers as they walked to the front door. It appeared they had resolved their argument. From the way the woman had been screaming earlier, Vaget thought she might have been drunk.
The jury convicted Ausburn of assault by means of force likely to produce great bodily injury but could not reach a verdict with respect to a charge of criminal threats. Ten jurors voted not guilty on that count and the trial court dismissed it.
Ausburn contends Chambers' testimony should have been stricken because she took the Fifth Amendment to avoid being impeached with respect to school lunch applications on which she understated her income. Ausburn also contends the trial court erroneously imposed the upper term.
1. The trial court committed no reversible error in refusing to strike all of Chambers' testimony.
a. Additional background.
On direct examination, Chambers testified she lied about her income in declarations filed annually since 2004 with the Los Angeles Unified School District to qualify her children for a federal free lunch program. Chambers indicated she filed the false declarations because her ex-husband was not paying child support and she wanted the free lunch program as “back up.” Also, at an orientation, parents were encouraged to complete the forms to enable the school to benefit from the program.
On cross-examination, defense counsel asked Chambers whether she was aware that, by filing the false declarations, she had committed perjury and could be prosecuted by the federal government. The trial court sustained an objection to the question and, at the side bar, indicated Chambers needed an attorney to represent her interests.
After speaking to an attorney, Chambers invoked her right against self-incrimination as to the false declarations. The trial court tentatively indicated Chambers' testimony would have to be stricken. The prosecutor disagreed and argued Chambers' refusal to incriminate herself as to a collateral issue did not require the trial court to strike her testimony regarding the incident, citing several cases including People v. Sanders (2010) 189 Cal.App.4th 543, Fost v. Superior Court (2000) 80 Cal.App.4th 724, and People v. Robinson (1961) 196 Cal.App.2d 384.
In the course of the colloquy that followed, the trial court asked whether Ausburn had not already obtained an admission from Chambers that she lied on the applications. Defense counsel asserted the prosecutor had downplayed the purpose of the applications and “[w]e never got into the oath that was on the form.” Also, Chambers admitted when she requested a restraining order against Ausburn that she was receiving child support. Further, Chambers had a business from which she received income. Defense counsel wished to impeach Chambers with all of this evidence. Defense counsel claimed cross-examination on the lunch applications was necessary to test Chambers' credibility.
The prosecutor suggested defense counsel could place information regarding the false applications before the jury by subpoenaing the applications from the custodian of the documents and calling a witness from American Honda to testify with respect to Chambers' income.
After extensive discussion of the issue, the trial court struck only the testimony related to the false applications. The trial court noted the false school lunch applications “were not closely related to the commission of the crime. They relate only to ․ credibility ․ and they have no relation to the subject matter of the direct examination.” The trial court indicated the matter should have been addressed before Chambers testified and, had the trial court understood the implications of her testimony, an attorney would have been appointed to represent her sooner.
The trial court admonished the jury “that testimony by ․ Chambers, on direct examination regarding applications for a school lunch program ․ for her children is stricken from the record. You are not to consider that testimony for any purpose. You are to treat it as though you never heard it.”
Following the admonition, defense counsel elicited from Chambers that she was on disability for seven months after the incident due to migraine headaches and, while on disability, Chambers received her regular annual salary of $75,000. Chambers also admitted she owned a medical billing service with an operational website while she was collecting disability. However, she testified the business had no active clients.
Defense counsel questioned Chambers about discrepancies in the number of times Chambers claimed she had been kicked by Ausburn in her direct testimony and in an application for a restraining order, the latter indicating exactly two times. Also, at the preliminary hearing, Chambers testified differently than she did at trial.
Defense counsel also questioned Chambers about improperly using her uncle's disability placard and Chambers admitted she fraudulently had used the placard to park in handicapped spaces at work.
On recross-examination, defense counsel asked Chambers if she had ever lied about her salary on an application for a utility. Chambers again claimed the right against self incrimination. At the sidebar, defense counsel indicated Chambers had misrepresented her income in an application for free lifeline telephone service. The trial court indicated Chambers “deserves an attorney for that” and admonished the jury to disregard defense counsel's questions.
At the close of trial, the parties stipulated Chambers' annual salary was “$62,900 to $74,572 from 2005 to 2009. During that period she submitted Los Angeles Unified School District applications for meal benefits that showed her income ranged from $28,800 to $38,400. Those applications were signed by her, certified to be true and correct, and that income was reported with the understanding that ․ deliberate misrepresentation of the information could subject her to prosecution under applicable state and federal laws.”
b. Ausburn's contention.
Ausburn contends the trial court erred in refusing to strike all of Chambers' testimony. (People v. Manchetti (1946) 29 Cal.2d 452, 461; Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 673.) Ausburn claims the trial court's ruling improperly limited his right to cross-examine Chambers and denied him due process and a fair trial. Ausburn argues material aspects of Chambers' testimony were contradicted by Beane and Vaget's testimony they heard no screams for help and Vaget's testimony she saw Chambers standing behind Ausburn after the loud crash and she saw no injuries. Because Chambers was the prosecution's only witness, the outcome of the case depended on her credibility and the school-lunch applications went directly to that issue. Ausburn concludes the undue restriction on cross-examination prevented a fair assessment of Chambers' testimony and mandates reversal per se. (Davis v. Alaska (1974) 415 U.S. 308; In re Anthony P. (1985) 167 Cal.App.3d 502, 513–514 [the denial of the right to effectively cross-examine a witness is prejudicial per se where it involves a principal witness against the accused].)
Alternatively, Ausburn contends the denial of the ability to confront Chambers with respect to the false school lunch applications requires reversal of the conviction under either Chapman v. California (1967) 386 U.S. 18, 24, or People v. Watson (1956) 46 Cal.2d 818, 827. Ausburn notes Chambers' testimony was so inconsistent the jury was unable to reach a decision as to the criminal threats count. Thus, the trial court's ruling cannot be considered harmless.
c. The relevant law.
“Because it relates to the fundamental fairness of the proceedings, cross-examination is said to represent an ‘absolute right,’ not merely a privilege.” (Fost v. Superior Court, supra, 80 Cal.App.4th at p. 733.) “Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf.” (Id. at p. 736.)
However, striking the testimony of a witness who asserts the privilege against self-incrimination is required only where invocation of the privilege blocks inquiry into matters which are direct, rather than merely collateral. (Board of Trustees v. Hartman (1966) 246 Cal.App.2d 756, 764[“[w]here the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant․”]; United States v. Seifert (9th Cir.1980) 648 F.2d 557, 561.) “The distinction between matters which are ‘collateral’ and those which are ‘direct’ is not precise or easy. It can be drawn only by reference to the particular facts of the particular case․” (Id. at pp. 561–562.)
The circumstances in which the issue may arise vary. “At one end of the spectrum are cases when [a] party ․ unjustifiably refuses to answer questions necessary to complete the cross-examination,” and “in such cases the consensus is that the direct testimony must be stricken․ [¶] At the other end of the spectrum are cases where a nonparty witness has testified on direct examination and where he or she is asked a question on cross-examination that relates only to the witnesses' credibility and the witness refuses to answer. Here, ․ the direct testimony should not be stricken, ‘or at the least the judge ought to have a measure of discretion in ruling on the matter.’ [Citation.]” (People v. Sanders, supra, 189 Cal.App.4th at p. 554.)
“In deciding whether to strike a ․ witness's testimony based on his or her refusal to answer one or more questions, the trial court should examine ‘ “the motive of the witness and the materiality of the answer.” [Citation.]’ [Citation.] The court should also consider if less severe remedies are available before employing the ‘drastic solution’ of striking the witness's entire testimony. [Citation.]” (People v. Seminoff (2008) 159 Cal.App.4th 518, 525–526.)
“In sum, there is solid support, both judicial and scholarly, for the proposition that when one or two questions asked during cross-examination are at stake and those questions relate to a collateral matter such as the nonparty witness's credibility, the trial court need not strike the entirety of that witness's direct testimony.” (People v. Sanders, supra, 189 Cal.App.4th at p. 556.)
The decision whether to strike a witness's testimony is reviewed for an abuse of discretion. (People v. Reynolds (1984) 152 Cal.App.3d 42, 47.)
d. The trial court did not abuse its discretion in refusing to strike all of Chambers' testimony.
Initially, we agree credibility was a significant issue in this case. However, the trial court's ruling did not prejudicially impact the jury's ability to evaluate Chambers' credibility. Chambers was cross-examined at length about the events preceding the attack, the attack itself and her conduct after the attack. Thus, she was effectively cross-examined about the incident that gave rise to her injuries and she did not unjustifiably refuse to answer questions necessary to complete the cross-examination. (People v. Sanders, supra, 189 Cal.App.4th at p. 554.)
The trial court struck Chambers' incriminating admission that she had lied under oath on school lunch applications. The trial court also prevented Ausburn from inquiring whether a similar situation obtained with respect to a request for free lifeline telephone service. Both of these matters were unrelated to the attack of February 28, 2009.
Additionally, the parties stipulated that Chambers submitted school lunch applications from 2005 to 2009 in which she certified her annual salary was less than half what it actually was and that Chambers reported the income “with the understanding that ․ deliberate misrepresentation of the information could subject her to prosecution under applicable state and federal laws.” Based on this stipulation, defense counsel was free to argue, based on the false school lunch applications, that the jury should not believe Chambers' testimony regarding the assault.
Also, defense counsel was able to impeach Chambers by eliciting her admissions that she fraudulently used her uncle's disability placard and owned an operational medical records billing company while she was collecting disability for the attack. Thus, Ausburn was not unduly prejudiced by the inability to cross-examine Chambers regarding the false school lunch applications.
The reversal per se cases cited by Ausburn, Davis v. Alaska and In re Anthony P., are distinguishable. Neither case involved the assertion of the privilege against self-incrimination by a prosecution witness. Rather, both cases involved a trial court's refusal to permit defense counsel to cross-examine prosecution witnesses with respect to racial bias. In each instance, defense counsel was permitted to ask whether the witness was racially biased but was precluded from any further questioning on that topic. In re Anthony P. concluded that, under the teaching of Davis, the trial court's ruling deprived the accused of the “ ‘right of effective cross-examination’ [which] compels reversal of the judgment․” (In re Anthony P., supra, 167 Cal.App.3d at p. 514.) However, racial bias is relevant because it provides a possible explanation for a witness's testimony. The trial court's rulings in this case did not foreclose inquiry into Chambers' motivation for testifying. Thus, Ausburn's case stands on a different footing than the cited cases.
Ausburn's authority for the proposition the trial court should have stricken all of Chambers' testimony similarly involved the denial of effective cross-examination. In People v. Manchetti, supra, 29 Cal.2d 452, the witness stopped answering questions in the middle of cross-examination. (Id. at pp. 459–460.) The witness was excused but, after the materiality of the witness's testimony became clear, the trial court refused a defense request to recall the witness, stating the witness already had been cross-examined. Manchetti reversed the conviction finding the defendant was deprived of the right to cross-examine the witness as to “vital, controverted matter[s]․” (Id. at p. 461.)
In Gallaher, a witness testified on direct-examination only as to facts leading up to a shooting. When defense counsel attempted to cross-examine the witness beyond this point, the witness invoked the Fifth Amendment. Gallaher held the defendant had been denied the right to cross-examine the witness. (Gallaher v. Superior Court, supra, 103 Cal.App.3d at pp. 672–673.)
Here, as noted above, defense counsel was not precluded from cross-examination of Chambers except in one very narrow area, namely, understating her income on school lunch and utility applications. Additionally, the parties stipulated Chambers understated her income on the school lunch applications, thereby providing Ausburn with the functional equivalent of the cross-examination.
In the reply brief, Ausburn asserts the rule stated in Sanders applies only to collateral matters such as a non-party witness's credibility. Ausburn argues the rule does not apply here because Chambers was not a non-party witness. Rather, she was the complaining witness and the victim of the crime. However, nothing in this circumstance removes Ausburn's case from the “collateral matters” end of the spectrum. As has been noted, Ausburn was able to cross-examine Chambers on topics similar to the false applications, that is, issues related to financial truthfulness, as well as her unauthorized use of a disability placard. Further, the stipulation provided Ausburn the ability to argue Chambers lied on the school lunch applications.
Nor did Chambers' refusal to testify regarding the false applications violate Ausburn's right to confront witnesses. “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) Thus, in the context of Evidence Code section 352, it has been held a trial court may restrict cross-examination of an adverse witness, notwithstanding the confrontation clause, “unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]” (People v. Quartermain (1997) 16 Cal.4th 600, 624.) For the reasons discussed above, we do not believe the jury would have received a significantly different view of Chambers' credibility had she been cross-examined about the false applications.
Finally, even assuming error and applying the most stringent “harmless beyond a reasonable doubt” standard of Chapman v. California, supra, 386 U.S. at p. 24, reversal is not required. The false school lunch and utility applications did not have significant probative value in proving Ausburn's innocence. Given the other avenues of impeachment available to Ausburn and the stipulation the parties entered into at the end of the trial, we readily conclude cross-examination on the school lunch applications is not likely to have produced a significantly lower impression of Chambers' credibility.
Given the circumstances presented, the trial court's ruling does not require reversal of Ausburn's conviction.
2. The trial court committed no sentencing error.
a. Relevant background.
Prior to sentencing, Ausburn admitted a prior conviction of bank robbery in federal court on October 24, 1990, within the meaning of the Three Strikes law.
The report of the probation officer prepared for sentencing summarized Ausburn's criminal history. In 1986, Ausburn was convicted of two counts of possession of a controlled substance and was granted diversion. In 1988, Ausburn was convicted of being under the influence of a controlled substance and was sentenced to 90 days in jail. Also in 1988, Ausburn was convicted of two counts of felony forgery and was granted probation with 180 days in jail. Later that year, Ausburn was convicted of trespass and was granted probation with 28 days in jail. In 1989, Ausburn was convicted of burglary and was granted probation with one year in jail. In 2000, Ausburn was convicted of battery on a cohabitant and was granted probation with two days in jail.
The probation officer noted four aggravating sentencing factors and concluded
47–year–old Ausburn has anger management problems and presents a threat to the community. The probation officer found no mitigating factors and recommended the high-base term.
At the time of sentencing, defense counsel asked the trial court to strike the prior bank robbery conviction. (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497.) The trial court heard the testimony of numerous defense witnesses and the argument of counsel. Defense counsel indicated no weapon was used in the bank robbery. The trial court struck the prior conviction, noting Ausburn had been gainfully employed from 2000 through 2009, he had no contact with law enforcement during that time, and the bank robbery conviction was somewhat “remote in time.”
The trial court thereafter sentenced Ausburn to the upper term of four years for assault. The trial court stated the circumstances in aggravation included the fact the crime involved a high degree of cruelty, viciousness, or callousness. The trial court also “[took] into account the injuries suffered by the victim in this case. The defendant took advantage of a position of trust, of confidence to commit the offense. He engaged in violent conduct which indicates a serious danger to society. He has prior convictions, which are numerous. They do appear to be of increasing seriousness. This is not only a violent crime, it's a crime involving violence. And he served a prior prison term. I do not find any circumstances in mitigation. [¶] Therefore, the circumstances in aggravation outweigh the circumstances in mitigation.”
b. Ausburn's argument.
Ausburn contends the four-year term imposed by the trial court resulted in a miscarriage of justice and did not promote the ends of substantial justice. Ausburn notes his current offense, assault by means likely to produce great bodily injury, is not a serious felony. Further, the bulk of Ausburn's criminal history is explained by drug addiction which culminated in the 1990 unarmed bank robbery conviction. Ausburn claims that, after his release from custody in 1995, he stopped using drugs, became a positive influence in the community and got a job with Honda as a systems programmer. He argues imposition of the upper term will deprive his family of financial security. Ausburn concludes proper consideration of his personal history and prospects compels a shorter term.
c. No abuse of the trial court's sentencing discretion appears.
Initially, we note Ausburn did not preserve this claim for appeal by objecting to the trial court's asserted failure to make proper discretionary sentencing choices. (See People v. Gonzalez (2003) 31 Cal.4th 745, 751; People v. Scott (1994) 9 Cal.4th 331, 353.) However, even if this omission is overlooked, no error appears.
We review a trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (Ibid.) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 977–978.)
Here, the trial court cited numerous aggravating factors including the injury to Chambers, the cruel, vicious, and callous nature of the attack, and Ausburn's abuse of a position of trust and confidence. (See Cal. Rules of Court, rule 4.421(a)(1) and (11).) The trial court also noted Ausburn engaged in violent conduct which indicated he presented a serious danger to society, he had numerous prior convictions which were of increasing seriousness and he had served a prior prison term. (See Cal. Rules of Court, rule 4.421(b)(1), (2) and (3).) The trial court found no circumstances in mitigation.
Ausburn does not dispute any of these findings. Rather, he contends the trial court should have reached a different result. However, a “single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (People v. Black (2007) 41 Cal.4th 799, 813.) Given the trial court's decision to strike Ausburn's federal bank robbery conviction and its identification of numerous valid factors in aggravation, we conclude the trial court engaged in an “ ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) Because no abuse of the trial court's discretion appears in its decision to impose the upper term, Ausburn's claim of sentencing error fails.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. ALDRICH, J.