California Court of Appeal Oct 4, 2021 No. E075354Unpublished
Filed 10/4/21 P. v. Andrus CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075354
v. (Super.Ct.No. SWF1700596)
RYAN GEORGE ANDRUS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
Judge. Affirmed with directions.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Genevieve
Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ryan George Andrus of inflicting corporal injury on a child
resulting in a traumatic condition and misdemeanor child endangerment. (Pen. Code,
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§§ 273a, subd. (b), 273d, subd. (a); unlabeled statutory citations refer to the Pen. Code.)
Andrus argues that the trial court violated his constitutional right of confrontation by
precluding cross-examination of the investigating officer on a particular topic. He also
accord People v. Brown (2003) 31 Cal.4th 518, 545 [exclusion of impeachment evidence
under Evidence Code section 352 “generally does not contravene a defendant’s
constitutional rights to confrontation and cross-examination”].) “A trial court’s limitation
on cross-examination pertaining to the credibility of a witness does not violate 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.” (Quartermain, supra, at pp. 623-624.)
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The court did not violate Andrus’s right of confrontation here. The court’s ruling
involved a routine application of Evidence Code section 352, and Andrus does not argue
that the court abused its discretion under that section. The court’s routine and proper
application of the Evidence Code did not implicate Andrus’s constitutional rights.
Moreover, Andrus fails to show that a reasonable jury would have formed a
significantly different impression of the investigator’s credibility if Andrus had cross-
examined the investigator about the cheating allegations. He states in a conclusory
manner that the cross-examination “would have significantly altered the jury’s
impression of Cornett’s credibility,” but he does not explain how or why. That
conclusory assertion does not carry Andrus’s burden of demonstrating error. (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573 [“Perhaps the most fundamental rule of
appellate law is that the judgment challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error”].)
Even if the court’s ruling had violated Andrus’s right of confrontation, any error
was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S.
673, 684.) Whether a confrontation clause violation was harmless depends on a host of
factors, including “the importance of the witness’[s] testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the prosecution’s
case.” (Ibid.)
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First, Andrus does not identify any other respect in which the court restricted his
cross-examination of the investigator. Second, the investigator’s testimony was only a
small part of the People’s case. He opined that Doe’s neck injuries were consistent with
strangulation. But that testimony was cumulative: The child abuse pediatrician also
testified that Doe’s injuries were consistent with strangulation. The investigator
additionally testified that he arranged Doe’s forensic interview and that he interviewed
Andrus. But he did not testify about the substance of those interviews. Rather, the
People played the recordings of those interviews for the jury.
Third, the People’s case against Andrus was strong. Doe consistently recounted
the abuse to the investigating social worker, the deputy, the forensic interviewer, the
pediatrician, and the jury. Andrus also had a prior conviction for child endangerment.
He denied that he committed the abuse in this case and suggested that a teacher or
someone else at school inflicted Doe’s injuries, so the case turned on whether the jurors
believed Doe or Andrus. But the impeachment of the investigator had nothing to do with
Doe’s or Andrus’s credibility. For all of these reasons, any constitutional violation was
harmless beyond a reasonable doubt.
In sum, we reject Andrus’s argument that the court violated his constitutional right
of confrontation. He fails to show a violation, and any violation was harmless beyond a
reasonable doubt.
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II. Section 654
Andrus argues that the court erred by imposing a concurrent sentence on count 2.
He asserts that counts 1 and 2 were based on the same course of conduct, so the court was
required to stay the sentence on count 2. We agree.
“Section 654 precludes multiple punishment for a single act or omission, or an
indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) The
section precludes “either concurrent or consecutive sentences.” (Id. at p. 592.) If section
654 applies, the court should impose the sentence for one conviction and then impose but
stay the sentence for the other conviction. (Ibid.)
Here, the amended information stated that count 2 was “a different offense from
but connected in its commission with the charge set forth in count 1.” The probation
report asserted that section 654 did not apply to counts 1 and 2 because “they were two
separate instances that occurred at different times.” The People’s sentencing
memorandum asserted that the probation report was wrong. The memorandum stated
that “the counts were charged as alternatives for the same course of conduct. Thus, any
sentence in Count 2 should be run concurrently to Count 1.”
On count 1 (inflicting corporal injury on a child), the trial court sentenced Andrus
to a six-year split sentence, consisting of four years in county jail and two years on
mandatory supervision. (§ 1170, subd. (h); People v. Camp (2015) 233 Cal.App.4th 461,
464, fn. 1.) On count 2 (misdemeanor child endangerment), the court stated that it was
sentencing Andrus to “180 days, to be served concurrent with Count 1, pursuant to
[section] 654.” And as to Count 2, the sentencing minute order states: “Sentenced to
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Riverside County Jail for the term of 180 days. [¶] Count 02 to run Concurrent. [¶]
County jail sentence may be served at any Penal Institution. [¶] [Section] 654 stay
granted on Count(s) 02.”
The court appeared to agree with the People that section 654 applied.
Accordingly, the court should have stayed Andrus’s sentence on count 2 and should not
have imposed a concurrent sentence. The People concede the error on appeal and
acknowledge that their sentencing memorandum incorrectly advised the court to impose a
concurrent sentence. We therefore direct the trial court to clarify the sentencing minute
order so that the sentence on count 2 is stayed.1
1 The court did not prepare an abstract of judgment, so there is no abstract to correct.
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DISPOSITION
On remand, the trial court shall correct the sentencing minute order by deleting
any reference to Andrus’s sentence on count 2 running concurrently; the minute order
should reflect that the sentence on count 2 is stayed. The court shall forward a certified
copy of the corrected minute order to the Riverside County Sheriff’s Department. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly excluded impeachment evidence under Evidence Code section 352 and that the defendant's sentence for misdemeanor child endangerment must be stayed pursuant to Penal Code section 654.
Issues
Did the trial court violate the defendant's confrontation rights by excluding cross-examination regarding an investigator's alleged misconduct?
Did the trial court err by imposing a concurrent sentence instead of staying the sentence for the misdemeanor child endangerment count under Penal Code section 654?
Disposition. Affirmed with directions
Quotations verified verbatim against the opinion
“In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.”
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.”
“The court should have stayed Andrus’s sentence on count 2 and should not have imposed a concurrent sentence.”