People v. Rutigliano CA2/6

Filed 5/18/16 P. v. Rutigliano CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262827 (Super. Ct. No. KA105796) Plaintiff and Respondent, (Los Angeles County)

v.

JACK RUTIGLIANO,

Defendant and Appellant.

Jack Rutigliano appeals his conviction by jury for dissuading a witness 1 from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)) , corporal injury on a girlfriend resulting in traumatic condition (§ 273.5, subd. (a)), and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4).) Appellant admitted suffering two prior strike convictions (§§ 667, subds. (b)- (i); 1170.12, subds. (a) - (d)) and two prior serious felony convictions (§ 667, subd. (a)(1)), and was sentenced to 43 years to life. Appellant contends that a pattern instruction on witness out-of-court statements (CALCRIM 318) violated his due process rights and the trial court erred in calculating presentence credits. We modify the judgment to reflect that appellant was awarded 300 days actual custody plus 150 conduct credits, and affirm the judgment as modified.

1 All statutory references are to the Penal Code unless otherwise stated.

Facts and Procedural History On May 7, 2014, appellant broke into Angela H.'s house at five in the morning and choked her while she was asleep. Appellant, an ex-boyfriend, attempted to strangle Angela, grabbed her arms, and threw her on the floor. Angela tried to call 911 but appellant grabbed the cell phone and smashed it. Angela's 16-year-old daughter saw appellant choking Angela and called 911. Angela's 13-year-old son entered the bedroom with a bat and chased appellant out of the house. Los Angeles County Deputy Sheriff Christopher Lee responded to the 911 call and saw finger marks on Angela's neck, red marks on her arms, and redness and a small cut on her ankle. Angela said that appellant tried to strangle her, grabbed her arms and threw her to the ground, and smashed her cell phone. At trial, Angela recanted and testified that nothing physical happened. Angela said that she called the police because she was frustrated about her relationship with appellant and thought the police would ask him to leave. Audio tapes were played to the jury in which appellant called Angela from jail and discussed how Angela and the children should change their testimony. CALCRIM 318 The jury was instructed: "You heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness's testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true." (CALCRIM 318.) Appellant claims that the instruction violates his due process rights and imposes a mandatory presumption that Angela's out-of-court statements were true. The argument has been rejected by every court that has considered it. "CALCRIM No. 318 informs the jury that it may reject in-court testimony if it determines inconsistent out-of-court statements to be true. By stating that the jury 'may' use the out-of-court statements, the instruction does not require the jury to credit the earlier statements even while allowing it to do so. [Citation.] Thus, we reject defendant's