People v. Gorostiza CA5

Filed 1/3/22 P. v. Gorostiza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F082069 Plaintiff and Respondent, (Fresno Super. Ct. No. F16904710) v.

ELIAS GOROSTIZA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Ron Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Poochigian, J. and Meehan, J.

INTRODUCTION Appellant and defendant Elias Gorostiza has filed an appeal after he was resentenced. The parties agree the trial court erroneously imposed consecutive upper terms for two counts, and the matter must be again remanded. FACTUAL AND PROCEDURAL BACKGROUND1 Defendant was charged with multiple felony offenses after he physically assaulted his then-girlfriend, C.G., on two separate occasions in July 2016. C.G failed to appear at the preliminary hearing. Prior to trial, she testified at an evidentiary hearing that she did not want to testify at trial, she did not remember anything about the two incidents, and asserted that she would similarly testify that she could not remember anything if she appeared at trial. At defendant’s jury trial, which was held in December 2016, C.G. briefly testified on direct examination that she could not remember anything about the two incidents. She then failed to appear the next day for continued examination and cross-examination; the court issued a no-bail body attachment. Despite extensive efforts by the investigators for both the People and the defense, C.G. was not located and never returned to the trial. The court found she was unavailable as a witness within the meaning of Evidence Code section 240. Thereafter, the People moved to call the officers who interviewed C.G. to testify about her pretrial hearsay statements regarding the charged offenses. Defendant objected and argued C.G.’s pretrial statements were testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36, and inadmissible under the Sixth Amendment since the defense never cross- examined her at trial. The trial court overruled the defense objections and admitted the hearsay statements pursuant to Evidence Code section 1370, statements about the