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Name: People v. Johnson
Case #: H028782
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/22/2007

A defendant may receive multiple convictions for violating Pen. Code section 273.5 where the convictions are based upon multiple injuries inflicted during a single course of conduct. (People v. Harrison (1989) 48 Cal.3d 321.) Here, appellant struck the victim several times on August 1, separately injuring her with each assault. The court found that a new and separate violation of the offense was completed each time the victim received a separate injury as a result of the application of physical force. (But Pen. Code, sec. 654 may prohibit multiple punishments.) The Sixth Amendment Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36.) Statements are nontestimonial when made in the course of police interrogation when the primary purpose of the interrogation is to deal with an ongoing emergency. (Davis v. Washington (2006) 547 U.S. ___.) Here, the officer’s question to the prior victim asking, “What happened?” was not testimonial as the facts available to him at the time supported a belief that he was dealing with an emergency, even though appellant was in the police car. By using the word “unlawful” in Penal Code section 591 (the unlawful and malicious removal of a telephone) the Legislature did not intend that the proscribed conduct be unlawful independent of the prohibition contained in the statute, i.e., the removal of the telephone.