People v. Wong CA4/1

• Court: California Court of Appeal
• Decided: August 5, 2016
• Docket: D069907
• Status: Unpublished

Opinion

Filed 8/5/16 P. v. Wong CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069907, D069908

Plaintiff and Respondent,

v. (Super. Ct. Nos. INF1402078, BLF003630) SANG HING WONG, JR.

Defendant and Appellant.

APPEALS from a judgment of the Superior Court of Riverside County, Graham

Anderson Cribbs, Judge. Affirmed.

William Gerhard Holzer, under appointment by the Court of Appeal, for

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Arlene A. Sevidal, Michael P. Pulos and Minh U. Le,

Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Sang Hing Wong of corporal injury to a cohabitant, Jane Doe

(Pen. Code,1 § 273.5, subd. (a); count 1); false imprisonment (§ 236; count 2), and

destroying a cell phone (§ 591.5; count 3) in case No. INF1402078. The trial court found

true allegations that Wong had suffered a prior strike conviction (§§ 667, subds. (c),

(e)(1), 1170.12, subd. (c)(1)) and two or more prior felonies (§ 1203, subd. (e)(4)).2 It

found Wong in violation of probation in case No. BLF003630 under section 1203.2,

subdivision (b). The court sentenced him to three years four months in prison in case No.

INF1402078, consisting of a two-year term on count 1 and a one-year four-month term

on count 2 (both one-third the midterm, doubled). It sentenced him to 180 days on the

count 3 misdemeanor. The court imposed a previously suspended sentence of 13 years

eight months in case No. BLF003630 to run consecutively to case No. INF1402078.

In these consolidated appeals, Wong contends the court prejudicially erred by

admitting Doe's preliminary hearing testimony and a law enforcement officer's on-scene

"interview" of Doe at trial in case No. INF1402078 because Doe's statements were

testimonial and thus their admission violated his right to confront witnesses against him

under the Sixth Amendment, as well as his federal due process rights in his probation

revocation hearing in case No. BLF003630, which was held concurrently with the trial.

He additionally contends his counsel was constitutionally ineffective for failing to raise a

confrontation clause objection. Wong further contends the court erred by admitting

1 Statutory references are to the Penal Code unless otherwise indicated. 2 The court also found true that Wong had committed a felony while released on bail (§ 12022.1, subd. (a)(2)), but it struck that enhancement at Wong's sentencing hearing. 2 evidence of his prior instances of domestic violence under Evidence Code section 1109

and his counsel was constitutionally ineffective to the extent his objections did not

preserve the challenge. Wong maintains these cumulative errors rendered his trial

fundamentally unfair, requiring reversal of his convictions. Finally, Wong contends his

consecutive sentences on counts 2 and 3 in case No. INF1402078 should be stayed under

section 654. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 19, 2014, then eight-month pregnant Doe approached a gardener working

in a neighboring patio. The gardener observed that Doe was scared and crying, and her

phone was broken. Doe told the gardener that her husband had been beating her, and

asked the gardener to let her use his phone to call police. She called 911 to report that

about 20 minutes earlier, Wong had hit her and broken her phone because she was

keeping his car keys from him, he did not let her leave the house, and she had bruise

marks on her body. She told the dispatcher that Wong was under the influence of alcohol

and drugs, and she was next door hiding from him.

Eventually, Wong approached the gardener and asked if he had seen Doe. The

gardener informed Doe that Wong was looking for her and let her use his phone again to

call 911. Doe reported to the 911 dispatcher that Wong, her fiancée, was looking for her,

she was hiding at a neighbor's house, and she was going to walk farther away. The

dispatcher informed Doe that she had let deputies know "he's still there, and he was

looking for you," and they would be right there.

3 Riverside County Sheriff's Deputy Dustin Lloyd responded to the call and

contacted Doe about 30 minutes after Doe called 911, at an intersection about 150 to 200

yards away from her home. Doe, who appeared worried, told Deputy Lloyd that Wong

had blocked her in a hallway in their home and said she wasn't going to go anywhere,

then pulled her and repeated his statement. She told the deputy that Wong grabbed her

phone and destroyed it when she said she was going to call police.3 The deputy saw that

Doe did not have anything with her but her broken phone and a debit card; the screen of

Doe's phone was shattered and the phone lacked its back and battery. Doe told the

deputy that Wong was preventing her from leaving their house and had pinned her

against the wall using both of his hands. Deputy Lloyd observed bruising on Doe's right

breast area and arm. She explained the chest bruise occurred when Wong took her

phone, which she was holding up to her chest, and the others were from Wong pinning

her against the wall. When Deputy Lloyd asked Doe if she wanted to press charges, she

said, "Yes, he hurt me."

The People admitted audio recordings of Doe's 911 calls into evidence. Doe

refused to testify at trial, and after repeatedly finding her in contempt, the court found her

3 At this point in Deputy Lloyd's testimony, Wong's counsel began interposing confrontation clause objections, stating that Doe's answers were not within the preliminary hearing transcript. The court offered to give counsel a standing objection on the matter, which she declined. The court overruled Wong's confrontation clause objections. At a break, counsel moved for a mistrial on grounds Deputy Lloyd's testimony violated Wong's Sixth Amendment right to confront witnesses. The prosecutor responded the deputy "has offered the evidence of [Doe's] prior statements pursuant to the rules of evidence that allow for impeachment, and has limited impeachment to statements that were given by Ms. Doe during the preliminary hearing examination." The court denied Wong's motion. 4 to be unavailable as a witness within the meaning of Evidence Code section 240. The

parties thereafter stipulated that due to Doe's unavailability and continued refusal to

testify despite the People's grant to her of use immunity, her August 6, 2014 preliminary

hearing testimony would be read into evidence. At that hearing, Doe had testified she

called police on the day in question to come talk to Wong because Wong had been

drinking and would not take her to an anger management class they both were required to

attend; she wanted to leave the house to get some air but he closed the door and pushed

her inside to talk to her about their daughter. Doe characterized Wong as "stressed out."

Doe testified that she did not use her own phone to call police because Wong dropped it.

She denied he threw it intentionally. When asked about her statements to Deputy Lloyd,

Doe testified that Wong was just trying to apologize to her for not taking her to her class,

that he did not push her against the wall but merely "swayed" her to the side and tried to

apologize. She denied that Wong had bruised her as a result of pushing her against the

wall. Thereafter, Doe invoked her Fifth Amendment privilege against compelled self-

incrimination and refused to answer the rest of the prosecutor's or defense counsel's

questions.

The People presented Wong's ex-wife, Nallely Diaz, who was 26 years old at the

time of trial. She testified that a year after their relationship started in 2003, and while

they were dating, Wong started engaging in physical abuse. He had slapped her in the

face on one occasion, and on another occasion hit her head against bathroom tile, causing

her to start to black out. Diaz testified that on another occasion, when she was "maybe 15

or 16" years old, she hit him during an argument and he struck her and "busted" her

5 eyebrow open, requiring her to go to the emergency room for stitches. Diaz could not

remember the year the eyebrow incident occurred. On another occasion in 2011, Wong

grabbed her arm and pinned her to the ground trying to wrestle her phone away. During

another argument he dragged her by the hair into another room. Diaz finally got a

restraining order against Wong after the last incident. She testified she spoke to police

about the 2011 incident but did not report any of the others because she loved Wong, had

a child with him, and did not want to get him in trouble.

DISCUSSION

I. Right to Confrontation

Wong contends that admission of Doe's preliminary hearing testimony and Deputy

Lloyd's testimony concerning Doe's on-scene statements violated his Sixth Amendment

right to confront witnesses against him. Wong asserts the statements were testimonial,

and Doe was not available for cross-examination at either the trial or the preliminary

hearing. According to Wong, admission of this testimony was prejudicial because it

provided the only detailed account of the event, the prosecution heavily relied on Deputy

Lloyd's interview to prove the charges, and though Doe's preliminary hearing testimony

was more benign, it was also damaging in conjunction with her police interview.

A. Legal Principles

This court has outlined the relevant principles in several cases. (See People v.

Gann (2011) 193 Cal.App.4th 994; People v. Nelson (2010) 190 Cal.App.4th 1453.) "In

Crawford v. Washington (2004) 541 U.S. 36 . . . (Crawford), the United States Supreme

Court held that the confrontation clause of the Sixth Amendment to the United States

6 Constitution prohibits the admission of out-of-court '[t]estimonal statements of witnesses

absent from the trial [unless] the declarant is unavailable,' and 'only where the defendant

has had a prior opportunity to cross-examine.' [Citation.] The Crawford court did not set

forth 'a comprehensive definition' of what constitutes 'testimonial evidence,' but held that

'[w]hatever else the term covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.'

[Citation.] With respect to nontestimonial hearsay, Crawford held that where the

proffered statement is not testimonial, state law may regulate the admission of evidence

by applying statutory hearsay rules, without running afoul of the confrontation clause.

"In Davis v. Washington (2006) 547 U.S. 813 . . . (Davis), the United States

Supreme Court explained the distinction between nontestimonial and testimonial

statements made to law enforcement officers during a 911 call or at a crime scene:

'Statements are nontestimonial 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.' [Citation.] Statements 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.]

". . . [O]ur Supreme Court [has] identified several 'basic principles' to assist courts

in determining whether a particular statement is or is not testimonial. . . . [A]lthough a

testimonial statement need not be made under oath, it must have some 'formality and

solemnity characteristic of testimony' and 'must have been given and taken primarily . . .

7 to establish or prove some past fact for possible use in a criminal trial.' [Citation.]

However, '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.' [Citation.] '[T]he primary purpose for which a statement was given and

taken is to be determined "objectively," considering all the circumstances that might

reasonably bear on the intent of the participants in the conversation.' " (People v. Gann,

supra, 193 Cal.App.4th at pp. 1007-1008, quoting People v. Cage (2007) 40 Cal.4th 965,

984.)

Following Davis, supra, 547 U.S. 813, the high court reaffirmed that "not all those

questioned by the police are witnesses and not all 'interrogations by law enforcement

officers,' [citation], are subject to the Confrontation Clause." (Michigan v. Bryant (2011)

562 U.S. 344, 355; see People v. Leon (2016) 243 Cal.App.4th 1003, 1019.) More

recently, it explained in Ohio v. Clark (2015) ___ U.S. ___ [135 S.Ct. 2173, 2179-2180]

that "a statement cannot fall within the Confrontation Clause unless its primary purpose

was testimonial." (See People v. Rangel (2016) 62 Cal.4th 1192, 1214.) "In the end, the

question is whether, in light of all the circumstances, viewed objectively, the 'primary

purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial

8 testimony.' " (Ohio v. Clark, at p. 2180; Rangel, at pp. 1214-1215.)4 Hearsay evidence

must now satisfy this "primary purpose" test in order to be considered testimonial for

purposes of the Sixth Amendment confrontation right. (Leon, at p. 1019.)

In Davis, a woman called 911 and reported that her former boyfriend was " 'here

jumpin' on me again' " and " 'usin' his fists.' " (Davis, supra, 547 U.S. at p. 817.) After

answering a few more questions, the victim told the operator that her boyfriend had run

out the door after hitting her and left in a car, after which the operator continued to

question the victim about the identity of the boyfriend and the circumstances of the

attack. (Id. at p. 818.) The police arrived within four minutes of the 911 call and

observed the victim in a "shaken" state with fresh injuries on her forearm and face,

making frantic efforts to gather her belongings and children so they could leave the

residence. (Ibid.) In Hammon v. Indiana, a case consolidated with Davis, police

responded to a domestic violence call and found the victim alone on the front porch of

her home. (Id. at p. 819.) She appeared " 'somewhat frightened' " but claimed nothing

was wrong. (Ibid.) On entering the house, police saw a heating unit with broken glass

and found the victim's husband in the kitchen, who told police that he and the victim had

been in an argument but everything was " ' "fine now." ' " (Ibid.) Police kept the couple

in separate rooms and questioned the victim, who eventually signed an affidavit stating in

4 Because Wong's prosecution took place after Crawford, supra, 541 U.S. 36 was decided, we are not presented with the circumstances present in People v. Rangel, supra, 62 Cal.4th at p. 1192, where the trial took place in 1998. (Id. at p. 1215.) The California Supreme Court held in Rangel that in cases tried before Crawford, a defendant does not forfeit a Crawford challenge by failing to raise a confrontation clause objection at trial. (Rangel, at pp. 1215-1216.) 9 part that her husband had hit her and shoved her into the broken glass of the heating unit.

(Id. at pp. 819-820.)

The court in Davis held that the victim's statements in the 911 call were

nontestimonial, but that the victim's statements to police officers in Hammon v. Indiana

were testimonial: "It is entirely clear from the circumstances that the interrogation [of the

victim in Hammon] was part of an investigation into possibly criminal past conduct—as,

indeed, the testifying officer expressly acknowledged . . . . There was no emergency in

progress; the interrogating officer testified that he had heard no arguments or crashing

and saw no one throw or break anything . . . . When the officers first arrived, [the victim]

told them that things were fine . . . and there was no immediate threat to her person.

When the officer questioned [the victim] for the second time, and elicited the challenged

statements, he was not seeking to determine (as in Davis) 'what is happening,' but rather

'what happened.' Objectively viewed, the primary, if not indeed the sole, purpose of the

interrogation was to investigate a possible crime—which is, of course, precisely what the

officer should have done." (Davis, supra, 547 U.S. at pp. 829-830.) The court held as to

the statements made in Hammon, enough formality was present in the questioning by the

fact the questions occurred in a separate room from the defendant, and the statements

"deliberately recounted, in response to police questioning, how potentially criminal past

events began and progressed" and "took place some time after the events described were

over. Such statements under official interrogation are an obvious substitute for live

testimony, because they do precisely what a witness does on direct examination; they are

inherently testimonial." (Davis, at p. 830.) Davis "strongly suggests that when the victim

10 is questioned by the police and the assailant has departed or is detained by the police, the

emergency, for purposes of the confrontation clause, is over." (People v. Johnson (2010)

189 Cal.App.4th 1216, 1226.)

B. Wong Forfeited Any Confrontation Clause Claim as to Admission of Doe's

Preliminary Hearing Testimony and His Counsel Was Not Constitutionally Ineffective for

Stipulating to Its Admission

Because Wong's counsel did not object on Sixth Amendment grounds, but in fact

stipulated to admit Doe's preliminary hearing testimony, he has forfeited his claim that its

admission violated his right to confrontation. (People v. Redd (2010) 48 Cal.4th 691,

729; People v. Dykes (2009) 46 Cal.4th 731, 756; People v. Alvarez (1996) 14 Cal.4th

155, 186.) "[N]umerous decisions by this court have established the general rule that trial

counsel's failure to object to claimed evidentiary error on the same ground asserted on

appeal results in a forfeiture of the issue on appeal." (Dykes, at p. 756.) The rule of

forfeiture applies with equal force to claims that admission of evidence violated the

confrontation clause. (See Redd, at p. 730 ["Defendant also contends that the admission

of out-of-court identifications violates a defendant's right under the Sixth Amendment to

confront witnesses, even when the declarant testifies. He did not raise an objection below

based upon the confrontation clause, and therefore has forfeited this claim"].)

As for Wong's claim of ineffective assistance of counsel, we generally do not

reach such claims on appeal, but may do so if the record affirmatively discloses counsel

had no rational tactical purpose or there is no satisfactory explanation for the omission.

(People v. Mai (2013) 57 Cal.4th 986, 1109; see People v. Cowan (2010) 50 Cal.4th 401,

11 493, fn. 31.) In this case, we are unable to conclude Wong's counsel had " ' "no

conceivable tactical purpose" ' " for failing to object. (Cowan, at p. 493, fn. 31.) Wong's

counsel was not prejudicially ineffective in this respect, as it is plain she had a rational

tactical purpose for admitting Doe's preliminary hearing testimony, which contradicted in

material respects Doe's 911 calls and statements to Deputy Lloyd and supported Wong's

defense that she had falsified her account. Indeed, during closing arguments, Wong's

counsel pointed to Doe's invocation of the Fifth Amendment as an indication that she did

not want to perjure herself for having made a false police report. The record on appeal

does not establish the absence of any rational tactical purpose for counsel's omission, and

consequently Wong cannot establish ineffective assistance of counsel with regard to

Doe's preliminary hearing testimony.

Even if we were to conclude otherwise, Wong cannot establish any prejudice from

his counsel's assumed failings. To do so, he must show that it is reasonably probable, but

for those failings, the result would have been different: more favorable to him.

(Strickland v. Washington (1984) 466 U.S. 668, 687, 691-696; In re Welch (2015) 61

Cal.4th 489, 517.) He "must carry his burden of proving prejudice as a 'demonstrable

reality,' not simply speculation as to the effect of the errors or omissions of counsel."

(People v. Williams (1988) 44 Cal.3d 883, 937.) Here, Wong makes no claim that Doe's

911 calls and the gardener's testimony were improperly admitted into evidence. The jury

could reasonably conclude from that evidence alone that Wong was her fiancée, he hit

Doe in a manner sufficient to cause bruising, he kept her inside their house against her

will, and he broke her phone by slamming it against the ground. Though Wong argues

12 that Doe's statements to the 911 dispatchers and the gardener were "brief and

conclusory," and that her statement about Wong being under the influence was false, he

does not explain how that evidence is insufficient to support his convictions for corporal

injury to a cohabitant, false imprisonment, and destruction of a cell phone. Nor are we

persuaded by the fact that the prosecutor assertedly did not rely on that evidence in her

closing argument. The question is whether the jury would have reached a different

conclusion absent any ineffective assistance in light of the remaining evidence presented

to it. Finally, Doe's preliminary hearing testimony downplayed the incident, and favored

Wong in many respects. Under the circumstances, we cannot conclude that without

counsel's stipulation to admit Doe's preliminary hearing testimony, Wong would have

achieved a better outcome at trial.5

5 Following the completion of briefing in this matter, Wong brought to our attention People v. Giron-Chamul (2016) 245 Cal.App.4th 932, which he states is relevant to his claim that Doe was unavailable for cross-examination at the preliminary hearing or trial. Giron-Chamul involved a child witness, the defendant's then five-year two-month-old daughter, who testified at trial after which the defendant was convicted of orally copulating her. (Id. at p. 936.) During cross-examination, the child refused to answer "hundreds" of questions on important topics, including her drawings and report to a day care provider, her forensic interview, other possible explanations for her apparent sexual knowledge, and follow-up questions on some of her specific claims about what the defendant had done to her. (Id. at pp. 966, 968.) The Court of Appeal agreed with the defendant's claim that he was denied his right to confrontation because he did not have a full and fair opportunity to cross-examine the child. (Id. at pp. 941, 961.) That conclusion depended in part on the inferences to be drawn from her refusal to answer questions, which the appellate court observed was different for a child witness: "An adult witness's difficult and defiant conduct, such as refusing to answer questions, gives rise to an inference that the testimony the witness does give is not believable. [Citations.] A similar inference does not arise when a child witness has difficult answering questions. Indeed, a child's reluctance to answer questions, especially about sensitive subjects such as molestation, may enhance the child's credibility to the extent it suggests that whatever 13 C. Deputy Lloyd's Testimony

Wong contends Doe's statements elicited from Deputy Lloyd's interview were

testimonial within the meaning of Crawford, supra, 41 U.S. 36, and thus improperly

admitted into evidence in violation of his Sixth Amendment rights, because the deputy's

interview of Doe did not occur during an ongoing emergency or was motivated by any

need to locate Wong, but rather constituted questions to Doe about a past event for the

purpose of conducting a criminal investigation. The People respond that Doe's

statements to Deputy Lloyd were not testimonial; that Doe was outside her home to avoid

further physical abuse, and the primary purpose of the deputy's conversation with Doe

was to deal with a contemporaneous emergency, namely to understand Doe's

circumstances and take action to with respect to that situation. The People argue Doe's

interrogation was to enable police assistance to meet the ongoing emergency, which had

not ended because Doe had reported that Wong was outside looking for her and "[h]ad

the officer simply walked away, Doe would be in the same position she was in before she

happened is too traumatic for the child to discuss. Here, daughter's refusal to answer numerous questions did not in and of itself suggest a lack of credibility as it might for an adult." (Id. at p. 967.) Reviewing cases, the court held that given the number of questions left unanswered and their critical importance, the defendant was deprived of his right to " ' " a full and fair opportunity to probe and expose . . . infirmities" ' in her testimony and out-of-court statements" and the testimony should have been stricken. (Id. at p. 969.) It further held that the violation was prejudicial as the child was the complaining witness, her claims were not corroborated by evidence from any independent source, and the prosecution's case was "far from overwhelming" as evidenced by a jury deadlock and the defendant's acquittal on two other counts. (Id. at p. 969.) Giron-Chamul has little bearing to the present case, which involves an adult witness and the presence of other corroborating evidence of Wong's offenses. We need not discuss it further as we have concluded Wong forfeited his confrontation clause objection to the admission of Doe's preliminary hearing testimony.

14 called 911—in danger of being found by [Wong]—and the emergency would not have

been dealt with."

In Michigan v. Bryant, supra, 562 U.S. 344, the U.S. Supreme Court explained:

"The existence of an ongoing emergency is relevant to determining the primary purpose

of the interrogation because an emergency focuses the participants on something other

than 'prov[ing] past events potentially relevant to later criminal prosecution.' [Citation.]

Rather, it focuses them on 'end[ing] a threatening situation.' " (Id. at p. 361.) "The

existence of an ongoing emergency must be objectively assessed from the perspective of

the parties to the interrogation at the time, not with the benefit of hindsight. If the

information the parties knew at the time of the encounter would lead a reasonable person

to believe that there was an emergency, even if that belief was later proved incorrect, that

is sufficient for purposes of the Confrontation Clause." (Id. at p. 361, fn. 8.) Based on

Bryant, the California Supreme Court has identified six factors to consider in determining

whether statements made in the course of police questioning are for the primary purpose

of creating an out-of-court substitute for trial testimony implicating the confrontation

clause: "(1) [A]n objective evaluation of the circumstances of the encounter and the

statements and actions of the individuals involved in the encounter; (2) whether the

statements were made during an ongoing emergency or under circumstances that

reasonably appeared to present an emergency, or were obtained for purposes other than

for use by the prosecution at trial; (3) whether any actual or perceived emergency

presented an ongoing threat to first responders or the public; (4) the declarant's medical

condition; (5) whether the focus of the interrogation had shifted from addressing an

15 ongoing emergency to obtaining evidence for trial; and (6) the informality of the

statement and the circumstances under which it was obtained." (People v. Chism (2014)

58 Cal.4th 1266, 1289.)

Although the question is close, applying these principles here compels us to

conclude, viewing the circumstances objectively, that Deputy Lloyd's encounter with Doe

did not produce testimonial hearsay, and admission of her statements to him into

evidence did not violate Wong's Sixth Amendment right to confront witnesses. Deputy

Lloyd arrived at the scene to find Doe alone, worried, and hiding from Wong having

nothing in her possession but her broken phone and a debit card. He had been informed

by the 911 dispatcher that Wong was "still there" and actively looking for her. Though

Deputy Lloyd testified he did not see Doe was overtly bleeding or hysterical or that

Wong was chasing or threatening her, he did see Doe's bruises, and from his perspective,

she was presently avoiding perceived danger from Wong. It is reasonable to conclude

that under these circumstances, Deputy Lloyd's questioning, at least initially, was for the

purpose of protecting Doe from Wong who was still following her and to determine what

was happening, not merely what had happened earlier. The fact that Deputy Lloyd later

contacted Wong at his and Doe's house does not change our conclusion, as there is no

evidence that when he contacted Doe, the deputy was aware that Wong had returned to

the house. Rather, the deputy could reasonably conclude Wong was at large presenting a

danger to Doe, and possibly others, in view of the absence of evidence that Deputy Lloyd

knew Wong's motives. As to the question of an ongoing emergency, the high court has

explained it is " 'highly context-dependent' " and "[e]ven if hindsight reveals that an

16 emergency did not, in fact, exist, if it reasonably appeared to exist based on the

information known when the statement was made the emergency test is satisfied."

(People v. Blacksher (2011) 52 Cal.4th 769, 814.) Further, "[e]ven when a threat to an

initial victim is over, a threat to first responders and the public may still exist." (Ibid.)

The record permits us to conclude that Deputy Lloyd reasonably perceived such

emergency circumstances here, and that in questioning Doe on the street, he was not

primarily acting as an investigator gathering evidence for trial.

II. Claim of Due Process Violation in Probation Revocation Hearing

In case No. BLF003630, Wong was placed on probation with a condition that he

"[o]bey all laws, ordinances, and court orders." After the jury returned its verdicts in the

present case, the court addressed the People's petition to revoke Wong's probation in case

No. BLF003630, the hearing on which it had ordered to run concurrent to the trial. The

court ruled: "Based upon the outcome of the underlying case that we deal with here

today, again this is case number INF1402078, the jury having found the defendant guilty

as charged in counts 1, 2 and 3. The court at this time does make a finding that the

defendant Mr. Wong is, in fact, in violation of his probationary status in case number

BLF003630." Defense counsel did not object to the court's consideration of those

convictions as evidence of Wong's probation violation.

Wong contends admission of Doe's preliminary hearing testimony and Deputy

Lloyd's testimony about Doe's statements violated his general due process right to

confront and cross-examine witnesses in the probation revocation hearing. He repeats his

argument that this evidence provided the only detailed account of the incident and further

17 asserts that Doe was not credible, which made cross-examination especially important.

Wong maintains the court's error prejudiced him because the deputy's testimony was the

most damaging evidence in the case, it was partly corroborated by Doe's preliminary

hearing testimony, and in the absence of that evidence, "Doe['s] serious credibility issues

outweighed the remaining pieces of the prosecution's case, and the court would have been

unable to find a probation violation by a preponderance of the evidence."6

The People respond that the trial court did not rely on Doe's preliminary hearing

transcript or Deputy Lloyd's testimony in finding Wong violated his probation, but on the

jury's guilty verdict on the charges in case No. INF1402078. Alternatively, they argue

6 For these contentions, Wong relies on the balancing test set forth in United States v. Comito (9th Cir. 1999) 177 F.3d 1166, under which a court weighs the probationer's interest in his right to confrontation against the government's good cause for denying it. (Id. at p. 1170.) In considering the probationer's interest, the court looks to "the importance of the hearsay evidence to the court's ultimate finding and the nature of the facts to be proven by the hearsay evidence." (Id. at p. 1171.) " '[T]he more significant particular evidence is to a finding, the more important it is that the releasee be given an opportunity to demonstrate that the proffered evidence does not reflect "verified fact." ' [Citation.] So, too, the more subject to question the accuracy and reliability of the proffered evidence, the greater the releasee's interest in testing it by exercising his right to confrontation." (Ibid.) As the People point out, prior to the California Legislature enacting realignment legislation in 2011, the State of California had stipulated in a federal class action lawsuit to an injunction requiring it to adopt policies and procedures limiting the use of hearsay evidence as set forth in Comito. (See In re Miller (2006) 145 Cal.App.4th 1228, 1237; People v. Stanphill (2009) 170 Cal.App.4th 61, 80.) However, following the enactment of realignment, the federal court declared the case moot as of July 1, 2013. (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 651, quoting Valdivia v. Brown (E.D. Cal. 2013) 956 F.Supp.2d 1125, 1126-1127.) The federal court injunction only remains in effect for parolees arrested for violations before July 1, 2013. (Williams, at p. 651, fn. 9.) Because Wong's crimes occurred after July 2013, we are not subject to the Comito balancing test. That test is in any event "nearly identical" to the standard set forth in People v. Arreola (1994) 7 Cal.4th 1144, 1160; see In re Miller, at p. 1237.) 18 good cause exists for not allowing confrontation because Doe's testimony at the

preliminary hearing was not adverse, and Wong's right to cross-examine her is excused.

They further argue that Doe's statements did not violate Wong's right to confront adverse

witnesses because they fell within the hearsay exception for spontaneous statements

under Evidence Code section 1240, which automatically satisfied Wong's due process

rights without the court having to find good cause for Doe's absence.

"We review rulings on whether hearsay was improperly admitted at a [probation]

violation hearing for abuse of discretion." (People v. Abrams (2007) 158 Cal.App.4th

396, 400.) Doing so, and setting aside Wong's forfeiture of the issue based on his

counsel's failure to object on due process grounds (e.g., People v. Bryant (2014) 60

Cal.4th 335, 424; People v. Esayian (2003) 112 Cal.App.4th 1031, 1042), we conclude

for several reasons that Wong cannot show any such error. First, as the People point out,

the court found Wong had violated his conditions of probation following the jury's

verdict convicting Wong of the offenses at issue in this appeal, and those convictions

formed the basis for the court's finding, even though they were not final at the time.

(Accord, People v. Arreola, supra, 7 Cal.4th at p. 1160 [confrontation clause error was

harmless where defendant was later convicted of offense forming the basis for his

probation violation and "affording defendant a new probation revocation hearing would

be a futile act because, on remand, the trial court would have before it defendant's

conviction of the offense whose circumstances formed the basis for that court's previous

action revoking probation—a conviction that presently, in itself, would support a proper

revocation of probation"; fact that conviction is not yet final did not preclude the trial

19 court from relying upon it to establish a probation violation]; People v. Avery (1986) 179

Cal.App.3d 1198, 1201-1205 ["a conviction conclusively establishes the fact of a certain

course of conduct by the person convicted . . . . All that need be demonstrated to

establish that a violation of probation has occurred is the fact of a new, post-probation

conviction, the fact that such conviction or the conduct necessarily involved therein

violated a condition of probation, and the further fact that such conviction was suffered

by the particular probationer in question"; revocation of probation based on such a

conviction is proper even though the conviction is not final pending appeal]; People v.

Towne (2008) 44 Cal.4th 63, 80-81.) Having concluded Wong was validly convicted of

the offenses in a proceeding at which the evidence he challenges was properly admitted,

there was no due process violation or error in connection with the court's subsequent

probation revocation determination. In his reply brief, Wong essentially concedes this

result, when he agrees that the People's contention is based on a "fair representation of

the trial transcript" and that in the event we reverse the judgment in the present case, the

corresponding judgment in case No. BLF003630 should be reversed.

Second, accepting Wong's argument that the court relied not on the convictions

but the challenged evidence to establish a probation violation, it had declared Doe legally

unavailable (and counsel stipulated as such) due to her refusal to testify in the face of

contempt findings. (See Evid. Code, § 240, subd. (a)(6) [" 'unavailable as a witness'

means that the declarant is . . . [¶] . . . [¶] . . . Persistent in refusing to testify concerning

the subject matter of the declarant's statement despite having been found in contempt for

refusal to testify"].) Though the People do not raise the point, legal unavailability is

20 sufficient good cause under People v. Arreola, supra, 7 Cal.4th at pages 1159-1160.7

Furthermore, the challenged evidence was not the sole evidence establishing Wong's

crimes. As we have pointed out, there was other evidence corroborating Doe's statements

to Deputy Lloyd, namely, the 911 calls, the gardener's testimony, and Doe's bruising on

her chest and arm, photographs of which were admitted into evidence. These facts

reduce the significance of the challenged evidence and provide indicia of reliability.

(Ibid.) Under the circumstances, had it not simply relied on Wong's convictions in the

present case, the court would not have abused its discretion in concluding good cause for

7 A probationer facing revocation of probation is not entitled to the "full panoply of rights" due a defendant in a criminal trial. (Morrissey v. Brewer (1972) 408 U.S. 471, 480; see People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198.) However, as the People correctly concede, probationers have a due process right to confront adverse witnesses unless the trial court finds good cause for not allowing confrontation. (People v. Arreola, supra, 7 Cal.4th at p. 1159; People v. Stanphill, supra, 170 Cal.App.4th at p. 78; see also Rodriguez, at p. 441.) In Arreola, the California Supreme Court explained that "[t]he broad standard of 'good cause' is met (1) when the declarant is 'unavailable' under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant." (Arreola, at pp. 1159-1160; see also People v. Winson (1981) 29 Cal.3d 711, 719 ["Generally, if the witness is legally unavailable, the former testimony may be admitted"].) "Thus, in determining the admissibility of the evidence on a case- by-case basis, the showing of good cause that has been made must be considered together with other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (Arreola, at p. 1160.) 21 the testimony outweighed the importance of Wong's due process right to confrontation

and cross-examination.

III. Admission of Prior Instances of Domestic Violence

Wong contends the trial court erred by permitting Diaz to testify about prior acts

of domestic abuse that had occurred 10 years or more from the charged offense. Pointing

out that acts over 10 years old are presumptively inadmissible (Evid. Code, § 1109, subd.

(e)), he maintains the court did not conduct a proper inquiry into whether admission of

Diaz's testimony was in the interest of justice because the People did not prove the date

of the acts by a preponderance of the evidence, and the People did not rebut the

presumption of inadmissibility because the acts with regard to Diaz were more violent

and inflammatory than in the present case. Wong argues that the error requires reversal

because evidence of uncharged crimes is inherently prejudicial; the acts against Diaz

were more violent and against a younger, more vulnerable, and sympathetic victim; Doe

had lied about him being under the influence and refused to testify; and the prosecutor

repeatedly referred to Diaz's testimony in her closing and rebuttal arguments.

The People respond that Wong's prior acts against Diaz were within the statutory

time limit of 10 years; that defense counsel had made it clear to the court that some of the

incidents were nine years old. They also argue the acts against Diaz were not more

violent or egregious than the incident against Doe in that there were no pictures of Diaz's

injuries (as there were for Doe's), and Doe was pregnant at the time Wong attacked her,

making the acts against Doe more inflammatory. They maintain the testimony took up

little time of the trial, and that Wong points to no evidence of jury confusion.

22 A. Legal Principles and Standard of Review

Propensity evidence—evidence a defendant committed an uncharged offense—is

ordinarily inadmissible to establish a disposition to commit a charged offense. (Evid.

Code, § 1101, subd. (a); People v. Culbert (2013) 218 Cal.App.4th 184, 191-192.) But in

a criminal prosecution of a defendant accused of an offense involving domestic violence,

"evidence of the defendant's commission of other domestic violence is not made

inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section

352." (Evid. Code, § 1109, subd. (a).) This section makes evidence of past domestic

violence inadmissible only if the court determines 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. (People v. Johnson (2010) 185 Cal.App.4th 520, 530 & fn. 7.)

Evidence Code section 1109 "reflects the legislative judgment that in domestic violence

cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later

accusation." (Id. at p. 532.)

However, subdivision (e) of Evidence Code section 1109 creates a presumption of

inadmissibility if the prior domestic violence is more than 10 years old, "unless the court

determines that the admission of this evidence is in the interest of justice." (People v.

Johnson, supra, 185 Cal.App.4th at pp. 538-539.) The interest of justice test is satisfied

when the court balances the factors for and against admission under Evidence Code

section 352 and concludes the evidence is more probative than prejudicial. (Id. at pp.

539-540.) " ' "The principal factor affecting the probative value of an uncharged act is its

23 similarity to the charged offense." ' " (Id. at pp. 531-532.) Evidence Code section 1109,

subdivision (e) "clearly anticipates that some remote prior incidents will be deemed

admissible and vests the courts with substantial discretion in setting an 'interest of

justice' standard. We therefore review that determination for abuse of discretion." (Id.

at p. 539.) "A proper exercise of discretion is ' "neither arbitrary nor capricious, but is an

impartial discretion, guided and controlled by fixed legal principles, to be exercised in

conformity with the spirit of the law, and in a manner to subserve and not to impede or

defeat the ends of substantial justice." ' [Citation.] Exercises of discretion must be

' "grounded in reasoned judgment and guided by legal principles and legal policies

appropriate to the particular matter at issue." ' " (People v. Diaz (2014) 227 Cal.App.4th

362, 376-377.)

B. Analysis

We conclude the trial court did not abuse its discretion in admitting Diaz's

evidence. In their pretrial motion seeking admission of the evidence, the People

explained that they sought to have Diaz testify "that the defendant has previously

physically assaulted her by slapping her in the face, 'choking her,' and dragging her by the

hair from one room to the other." They stated Diaz would also testify about "an incident

where the defendant cornered her in a bathroom, banged her head against the tile,

assaulting her and causing her vision to blur," as well as "an incident from 2011 . . .

where she told him she didn't want to be with him anymore and he pinned her down and

told her 'you know me, you know who I am,' " which Diaz "took . . . as a threat." Before

the court made its pretrial ruling, the prosecutor had advised it of the presumption of

24 inadmissibility for acts more than 10 years old, and the court, acknowledging it had spent

two to three hours reviewing the case, expressly found based on the entirety of the

circumstances and after conducting an Evidence Code section 352 balancing that it was

in the interest of justice to admit Diaz's testimony, as long as the People laid a proper

foundation.

The court has broad discretion when evaluating the prejudicial effect of evidence

versus its probative value (People v. Merriman (2014) 60 Cal.4th 1, 60), and this court

merely asks whether its ruling was arbitrary, capricious, patently absurd, or "exceeds the

bounds of reason . . . ." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233; People v.

Jackson (2005) 128 Cal.App.4th 1009, 1018.) Here, the court was entitled to conclude

that the acts against Diaz were sufficiently similar in nature (restraining both women by

pinning them and using physical force with his hands) and not so more inflammatory than

the acts against eight-month-pregnant Doe that it caused any Evidence Code section 352

prejudice. On this record, Wong fails to establish the court made an arbitrary or

capricious decision to admit evidence of his domestic violence against Diaz. There is no

support for Wong's assertion that the trial court did not conduct the proper inquiry into

whether admission of Diaz's testimony was in the interest of justice.

Nor did the People fail to prove the date of the acts or meet their burden of proof.8

In her testimony, Diaz recounted that some of the acts occurred in 2004 (a year after

8 Though Wong argues the People in its limine motion were "required to show the prior acts occurred within 10 years of the charged offense," he provides no support for 25 2003, when they started their relationship) and others occurred in 2011. Though she was

unable to clearly recall the date of the incident involving her eyebrow, she testified it had

occurred when she was about 15 or 16 years old, roughly 10 to 11 years earlier. The

People's burden was to prove Wong committed the prior acts by a preponderance of the

evidence (People v. Hoover (2000) 77 Cal.App.4th 1020, 1030) and the jury was so

informed by an instruction that satisfied constitutional due process requirements. (See

People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012-1016 [holding as to prior CALJIC

No. 2.50.01]; People v. Johnson (2008) 164 Cal.App.4th 731, 739-740 [rejecting due

process challenge to CALCRIM No. 852, the current instruction on Evidence Code

section 1109, pointing to Reliford and noting CALJIC No. 2.50.01 is similar in all

material respects to CALCRIM No. 1191, which tracks the language of CALCRIM No.

852].)

IV. Claim of Cumulative Error

Wong advances a claim of cumulative error, under which "errors that are

individually harmless may nevertheless have a cumulative effect that is prejudicial." (In

re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have found no merit to Wong's claims

of error, and absent error in any respect, Wong's cumulative prejudicial error argument

must be rejected. (People v. Butler (2009) 46 Cal.4th 847, 885.)

V. The Trial Court Did Not Err by Sentencing Wong Consecutively on Counts 2 and 3

that proposition. We are not persuaded by his citation to general principles that a moving party has the burden of proof on a motion. 26 Wong contends the trial court erred by failing to stay under section 654 the

sentences on his count 2 conviction for false imprisonment and the count 3 conviction for

destruction of a cell phone. He maintains that under People v. Jones (2012) 54 Cal.4th

350, the court was required to decide whether a single physical act was being punished,

not whether distinct criminal acts were being punished, and here, the prosecution used

Wong's acts in pinning Doe to the wall and taking her cell phone as the basis for all three

counts. He also points to the circumstances in People v. Trotter (1992) 7 Cal.App.4th

363, in which the appellate court held a defendant was properly sentenced consecutively

for two of three assaults for "three separate acts" (id. at p. 368), namely, firing three

shots, the first and second separated by a minute and the second and third separated by

several seconds, reasoning the time intervals between the shots evinced a separate intent

behind each. (Id. at pp. 365-368.) Wong maintains his act of pinning Doe against the

wall and his taking her cell phone occurred at the same moment, thus there was only one

physical act, but even if that were not the case, because the pinning was used to prove the

count 1 corporal injury offense, and the taking of the phone was also used as a basis for

count 1, consecutive punishment on counts 2 (based on the pinning against the wall) and

3 (based on the taking of the phone) are barred under section 654.

The People respond that even though Wong's crimes shared common acts or were

part of an indivisible course of conduct, the trial court could reasonably conclude he

harbored separate objectives for each violation. They argue there was substantial

evidence of three separate objectives: Wong intended to inflict injury when he initially

pinned Doe against the wall with the intent to get the car keys from her, then harbored a

27 separate objective when he sought to keep Doe in the house against her will when she

wanted to leave, then harbored yet another separate intent—to prevent her from calling

police—when he destroyed her cell phone. The People compare the circumstances to

People v. Nubla (1999) 74 Cal.App.4th 719, where section 654 did not preclude multiple

punishment for assault with a deadly weapon and spousal abuse given substantial

evidence of multiple objectives.

Section 654, subdivision (a), provides: "An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision. An acquittal or conviction and

sentence under any one bars a prosecution for the same act or omission under any other."

The section bars imposition of multiple punishments where one act or an indivisible

course of conduct violates more than one statute. (People v. Correa (2012) 54 Cal.4th

331, 336-337, 340-341; People v. Perez (1979) 23 Cal.3d 545, 551.) Whether a course of

conduct is indivisible depends on the intent and the objective of the defendant. (People v.

Capistrano (2014) 59 Cal.4th 830, 886 [" 'It is [the] defendant's intent and objective, not

temporal proximity of his offenses, which determine whether the transaction is

indivisible' "]; Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other

grounds in Correa, at p. 344.) Generally, if all the offenses were incident to one

objective, then punishment may be imposed for any one of such offenses but not for more

than one. (Ibid.) "On the other hand, if the evidence discloses that a defendant

entertained multiple criminal objectives which were independent of and not merely

28 incidental to each other, he may be punished for the independent violations committed in

pursuit of each objective even though the violations were part of an otherwise indivisible

course of conduct." (People v. Perez, at p. 551.) The purpose of the protection against

multiple punishment is to insure that the defendant's punishment is commensurate with

his criminal culpability. (Capistrano, 59 Cal.4th at p. 886.)

Whether there was more than one objective is a factual determination and will be

upheld on appeal if supported by substantial evidence. (See Capistrano, supra, 59

Cal.4th at p. 886 & fn. 14 [defendant's intent and objectives are factual questions for the

trial court, and to permit multiple punishments there must be evidence to support the

finding that the defendant formed a separate intent and objective for each offense for

which he was sentenced; appellate court may affirm the trial court's ruling, if supported

by substantial evidence, on any valid ground]; People v. Blake (1998) 68 Cal.App.4th

509, 512.)

That Wong's counsel only argued for a section 654 stay as to count 2 does not

prevent us from considering the question on the merits so as to avoid an unauthorized

sentence. (See People v. Brents (2012) 53 Cal.4th 599, 618.) In the absence of specific

factual findings by the court, we assess the record to determine if it contains facts that

would support a lawful decision to impose separate sentences without violating the

statutory proscription against multiple punishment. As we explain below, having done

so, we uphold the consecutive sentences.

The circumstances here are akin to those in People v. Nubla, supra, 74

Cal.App.4th 719, permitting the trial court in this case to conclude that Wong engaged in

29 a course of conduct with separate intents and objectives during Doe's ordeal. In Nubla,

the defendant, who had long abused methamphetamine and was under the influence on

the day of the incident, was convicted of assault with a deadly weapon, corporal injury on

a spouse, false imprisonment, and possession of methamphetamine, and received separate

sentences on the assault and corporal injury counts, and a stayed sentence on the false

imprisonment count. (Id. at pp. 723, 730.) He had gotten into an argument with his wife,

which escalated to the point where his wife sought to call police, prompting him to pull

the telephone from her hand and throw it across the room. (Id. at p. 723.) When she

began to scream for help, he put his hand over her mouth and pushed her face down onto

the bed, causing her nose to bleed. (Ibid.) He then pushed something cold and hard

against the back of her head, then turned her face-up and put a gun in her mouth, cutting

her lip and chipping her tooth. (Ibid.) After a few moments he took the gun out of her

mouth and told her to shoot him. (Ibid.) A few minutes later, he went into the bathroom

and apparently took some pills. A short time later, the defendant's wife was able to

escape and called police. The appellate court observed that the defendant had

"committed several acts of violence against his wife" and while the offenses were "not

sexual in nature, [they were] somewhat analogous to sex offenses in that several similar

but separate assaults occurred over a period of time." (Id. at p. 730.) It held the trial

court was entitled to conclude that each act was separate for purposes of section 654:

"Appellant's act of pushing his wife onto the bed and placing the gun against her head

was not done as a means of pushing the gun into her mouth, did not facilitate that offense

and was not incidental to that offense." (Id. at p. 731.)

30 As stated, our role is to decide whether substantial evidence supports the trial

court's decision to sentence Wong consecutively. The evidence permitted the trial court

to find that Wong, angry at Doe because she took his car keys, closed the door and kept

her in their home against her will to attempt to get his keys, used both hands to seize her

arms and pin her against the wall, causing bruising on her upper arms, then removed one

of his hands and grabbed her cell phone, throwing it to the ground to prevent her from

calling police, causing further bruising to her chest. Contrary to Wong's assertion that a

single physical act occurred here as in People v. Jones, supra, 54 Cal.4th 350, where the

defendant felon engaged in a single act of carrying a loaded and concealed firearm in his

car but was convicted of three crimes (id. at p. 352), the evidence in this case shows

Wong engaged in a course of conduct against Doe, a circumstance taking this case

outside of Jones's reasoning. (See Jones, at pp. 359-360 [distinguishing cases applying

the "intent and objective" test for a course of conduct and stating that defendant's

convictions were based on a "single act"; court referred to the circumstances presented

there as a "single-act case"].) Indeed, in Jones, the court recognized that it might not be

easy to ascertain what is a single physical act, and observed that "[i]n some situations,

physical acts might be simultaneous yet separate for purposes of section 654." (Id. at

p. 358 [discussing simultaneous possession of different items of contraband].) While the

series of events against Doe may have occurred in close sequence, as in People v. Nubla,

supra, 74 Cal.App.4th 719, they differed and had independent objectives and purposes,

without one act facilitating the other. That is, Wong's act in closing the door and

blocking Doe from leaving was not necessarily the same act in pinning her to the wall

31 and injuring her, and his destruction of the cell phone did not facilitate the other crimes.

Wong's assertion that there was a single act is a view of the evidence at odds with the

evidence supporting Wong's sentence, thus we disregard it in our substantial evidence

review.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.