California Court of Appeal Oct 15, 2015 No. D067862Unpublished
Filed 10/15/15 P. v. Sikes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D067862
Plaintiff and Respondent,
v. (Super. Ct. No. SCE342694)
THOMAS C. SIKES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.
Cookson, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Thomas C. Sikes of one count of assault with force likely to
produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)) and one count of willful
cruelty to an elderly adult likely to produce great bodily injury (§ 368, subd. (b)(1)). As
to both counts the jury found Sikes inflicted great bodily injury upon the victim who was
over 70 years of age (§ 12022.7, subds. (a), (c)).
The court sentenced Sikes to a total term of eight years in prison.
Sikes appeals contending the trial court erred in permitting the prosecution to
introduce the preliminary hearing transcript of a witness who refused to testify at trial.
He also contends the court committed prejudicial error in allowing Sikes to be cross-
examined about a prior incident of road rage.
We are satisfied the trial court correctly allowed the introduction of the prior
testimony of an unavailable witness and that it properly admitted evidence of a prior
incident in which Sikes attacked another motorist.
STATEMENT OF FACTS
The events in this case took place on the morning of April 30, 2014. On that date,
the victim in this case, 76-year-old Ronald Torncello, drove into a CVS parking lot and
parked in a handicapped spot. As he drove into the lot he was using his cell phone. The
victim apparently cut off Sikes as he was driving through the lot.
Sikes got out of his vehicle and approached the victim's parked car screaming and
recording the event on his cell phone. Sikes was complaining that the victim had been
1 All further statutory references are to the Penal Code unless otherwise specified. 2
driving while on the cell phone. Sikes was waiving his cell phone and said "I've got you
on video." The victim told him to go away. Shortly after that Sikes approached the car,
coming close to the door. The victim opened the door, told Sikes to "get out of my face"
and "flipped him off." As the victim got partly out of the door, Sikes hit him in the face
with a closed fist. The victim fell back into his car and his face began to bleed.
Donald Gilbert,2 who witnessed Sikes punch the victim, ran toward the men,
yelling at them. When Gilbert reached the victim's vehicle he got between the men and
told Sikes to "pick on someone your own size."
Torncello was severely injured, was hospitalized for a week and had two surgeries.
At the time of trial the victim was facing the possibility of a third surgery.
Defense
Sikes testified about the event. He said he was driving in the parking lot when
Torncello drove in front of him. He observed Torncello parked in a handicapped space
and walked over to him. Sikes went to his window to discuss the victim's driving. The
victim looked at Sikes and said "F. . . you."
Sikes returned to his car to get the camera on his cell phone. When he returned to
the victim's car to discuss the erratic driving, the victim "flipped him off."
As Torncello started to get out of his car he "kneed" Sikes in the groin. At that
point Sikes struck the victim in the face with the heel of his open hand.
2 Gilbert refused to testify at trial and the court admitted his testimony at the preliminary hearing. 3
Sikes recalled the victim said something about having a gun and another man came up
saying "crazy" things, so Sikes left. Sikes did not know the victim's age at the time of the
events in this case.
DISCUSSION
I
ADMISSION OF GILBERT'S PRIOR TESTIMONY
Sikes contends the court erred in permitting the prosecution to use Gilbert's prior
testimony. Sikes argues that although Gilbert steadfastly refused to testify before a jury,
even under threat of jail, the court should not have found him unavailable. Further, Sikes
argues the defense cross-examination at the preliminary hearing was inadequate such that
he was deprived of the Sixth Amendment right of confrontation.
A. Background
The trial court held a hearing to determine if Gilbert was unavailable. Gilbert
testified at that hearing that he would refuse to testify. Gilbert said he had recently been
released from prison where he was the "shot caller" for a white prison gang. He said that
if he testified for the District Attorney, it would place family members, who are in prison,
in serious danger. The court tried multiple times to get Gilbert to testify, including the
possibility of jail. Gilbert responded: "I'm not going to do it. You do what you have to
do. . . . I have 31 years in prison. You can't threaten me with jail." The court persisted
in attempting to coax Gilbert to testify, but ultimately concluded nothing would compel
him to do so. The court found Gilbert to be unavailable.
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B. Legal Principles
Evidence Code section 1291 allows the admission of prior testimony under oath
where the declarant is unavailable and the defendant has had the opportunity to cross-
examine the witness with the same motive and interest as existed at the time of trial when
the testimony was admitted. (People v. Wilson (2005) 36 Cal.4th 309, 341-343.)
A criminal defendant has the constitutional right to confront and cross-examine
witnesses against him or her. (Pointer v. Texas (1965) 380 U.S. 400, 403-405.) An
exception to the confrontation requirement exists where the witness is unavailable and
was subject to cross-examination by the defendant in the same case. (Crawford v.
Washington (2004) 541 U.S. 36, 59; People v. Carter (2005) 36 Cal.4th 1114, 1172-
1173.)
The test of cross-examination is the opportunity that existed at the time of the prior
testimony, not whether at the time of trial counsel perceives the cross-examination was
not as extensive or effective as counsel might have preferred. (United States v. Owens
(1988) 484 U.S. 554, 559; People v. Carter, supra, 36 Cal.4th at p. 1173.)
In determining whether the trial court properly found a witness unavailable we
review the development of the historical facts under the substantial evidence standard of
review. Once the historical facts are determined we independently decide if the witness
was properly found to be unavailable. (People v. Cromer (2001) 24 Cal.4th 889, 901.)
In order for a trial court to find a witness's refusal to testify to amount to
unavailability, the court must engage in meaningful efforts to try to gain the witness's
cooperation. The court however does not need to go to extreme measures where the
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record is clear that there is no action the court can take to get the reluctant witness to
cooperate. (People v. Smith, supra, 30 Cal.4th at pp. 623-624; People v. Walker (1983)
145 Cal.App.3d 886, 893-894.)
C. Analysis
The record demonstrates the trial court went to considerable lengths to get Gilbert
to agree to testify. It is very clear the witness would not be persuaded. He had been in
prison and was involved in a prison gang. He was not the least bit intimidated by the
possibility of contempt. The court's careful and lengthy inquiry of the witness leaves no
doubt he was unavailable to testify at trial.
Sikes complains that counsel at the preliminary hearing did not adequately cross-
examine the witness. Although the examination was brief, it appears counsel explored
the witness's observations and his location during those observations. Clearly counsel
cross-examined the witness with the same motive and interest as would be the case at
trial. The test is the opportunity for meaningful cross-examination. The fact trial counsel
would have preferred more cross-examination is not the test of confrontation. (People v.
Carter, supra, 36 Cal.4th at pp. 1172-1173.)
We find the record factually supports the finding of unavailability of the witness
and the opportunity for cross-examination. The trial court acted well within its discretion
under Evidence Code section 1291 in admitting Gilbert's prior testimony.
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II
EVIDENCE OF PRIOR ACTS
At trial the court permitted the prosecution to cross-examine Sikes about a
previous confrontation with another driver over a traffic incident. Sikes denied
attempting to strike that driver. Thereafter the court allowed testimony from the driver in
the uncharged incident. Sikes argues the court abused its discretion in admitting the
evidence. He contends that in the context in which it was presented it amounted to
propensity evidence showing Sikes's "propensity" to get enraged in traffic incidents.
As we will explain, given Sikes claimed he acted in self-defense when Torncello
"kneed" him, the cross-examination regarding the uncharged incident and the subsequent
rebuttal evidence were relevant to Sikes's intent in the circumstances of the present case.
A. Background
A witness, Billy Taylor, testified about an incident in 2011. At that time Taylor
was driving his car and had stopped on a city street so that someone in his car could make
a drop at the post office on Second Street in El Cajon. Sikes was a passenger in a car that
was apparently slowed by the manner in which Taylor had stopped his car. This
apparently upset Sikes to the point that he walked up to the driver side of Taylor's car and
got into a confrontation. At some point Sikes attempted to punch Taylor through the
open car window. The evidence was offered in rebuttal to Sikes's testimony that he had
hit Torncello in the face with his open hand in self-defense after he had been "kneed" by
Torncello.
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B. Legal Principles
Evidence of other uncharged acts is admissible under Evidence Code 1101 to
prove a relevant character trait. Evidence of specific acts may be admitted under
Evidence Code section 1101, subdivision (b), where it is relevant to show the defendant's
motive, intent, common scheme or plan, or identity. It is not admissible to show the
defendant's propensity to commit crimes. (People v. Fuiava (2012) 53 Cal.4th 622, 695.)
Similarity of the past acts to those charged is an important consideration. The
greatest degree of similarity is required where the past acts are admitted to prove identity.
A lesser degree of similarity is required to show the actor's intent. (People v. Ewoldt
(1994) 7 Cal.4th 380, 402-403.)
Under Evidence Code section 1103 specific instances of misconduct are
admissible if they are relevant to show later conduct by the defendant in conformance
with the established character trait. (People v. Fuiava, supra, 53 Cal.4th at p. 695.)
The trial court has broad discretion under Evidence Code section 352 to admit or
reject evidence of past uncharged acts. (People v. Carter, supra, 36 Cal.4th at pp. 1166-
1167; People v. Thornton (2007) 41 Cal.4th 391, 444.) We review the trial court's
decisions regarding such evidence under the abuse of discretion standard. We will only
overturn such decisions where the record establishes a manifest abuse of discretion.
(People v. Holloway (2004) 33 Cal.4th 96, 134; People v. Shoemaker (1982) 135
Cal.App.3d 442, 446-448.)
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C. Analysis
Sikes testified he only struck the victim after he had been assaulted and thus acted
in self-defense. The evidence of the 2011 incident was highly relevant to Sikes's intent in
the present case. In each instance Sikes reacted in a wildly excessive manner to slight
irritation. Both perceived affronts occurred in a traffic setting. In the present case
apparently the victim drove in front of Sikes, causing Sikes no harm. Here he denied
purposely striking the victim. However, the evidence was that he delivered a severe blow
to the victim's face. In the 2011 incident he attempted to hit that driver in the face, but
was thwarted when the driver grabbed Sikes's arm and held it.
In our view, the trial court acted well within its discretion in finding the prior act
evidence admissible to show intent and concluded the probative value of the evidence
outweighed any prejudice. We find no error in admitting the challenged evidence.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly admitted the preliminary hearing testimony of an unavailable witness and correctly allowed evidence of a prior uncharged act to prove the defendant's intent.
Issues
Whether the trial court erred in finding a witness unavailable and admitting his preliminary hearing testimony.
Whether the trial court abused its discretion in admitting evidence of a prior uncharged act of road rage to show intent.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court's careful and lengthy inquiry of the witness leaves no doubt he was unavailable to testify at trial.”
“The test is the opportunity for meaningful cross-examination. The fact trial counsel would have preferred more cross-examination is not the test of confrontation.”
“The evidence of the 2011 incident was highly relevant to Sikes's intent in the present case.”