Filed 7/20/15 P. v. Terry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

CHARLIE TERRY, JR.,

Defendant and Appellant.

F068006

(Kings Super. Ct. No. 13CM0701)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, 

Judge.

John Hardesty, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
2.

After a bench trial, the court convicted appellant, Charlie Terry, Jr., of inflicting 

corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and being under the influence 

of methamphetamine (Health & Saf. Code, § 11550, subd. (a)).

On appeal, Terry contends: 1) the court admitted the victim’s statement to police 

in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford); 2) the court 

admitted his statements to police in violation of Miranda v. Arizona (1966) 384 U.S. 436

(Miranda); and 3) the evidence is insufficient to sustain his conviction for being under 

the influence of methamphetamine. We affirm.

FACTS

On February 22, 2013, in the early morning hours, Joel Kim heard a woman 

screaming from a house down the street.

At approximately 1:21 a.m., Lemoore Police Officer Ryan O’Barr responded to 

the residence, which had its exterior and interior lights on and the front door open. As he 

parked across the street, Officer O’Barr heard a woman yelling. The officer was walking 

to the residence when a man, later identified as Terry, came to the front door and made 

eye contact with him. Terry immediately turned around, shut the door, and turned off the 

outside lights. O’Barr then saw silhouettes moving in the residence. Terry’s wife, 

Jennette,1then came out of the house unclothed and crying hysterically. O’Barr 

contacted Jennette and she told him that Terry had gone into the kitchen. O’Barr ordered 

Terry to go outside where he pat searched him for weapons and had him sit down. 

Officer O’Barr had Jennette go inside the house to get dressed. When she returned 

he started a tape recorder and began asking her questions to try to ascertain whether or 

not there was an ongoing emergency and whether she needed any medical attention. In 

the portion of the recording admitted into evidence, O’Barr asked Jennette several 

 

1 Mrs. Terry’s first name has various spellings throughout the record. We adopt 

“Jennette” as the spelling for her first name because that is how she spelled her name in a 

letter she wrote and presented to the court at sentencing. 
3.

preliminary background questions including her name, address, and birthdate.2 He then 

asked her, “What’s goin[g] on tonight.” In response to this question and several others,

Jennette stated that Terry was a methamphetamine user who had been off the drug for 

three weeks. However, he was high that day, even though he denied it, and he kept going 

in and out of the house. Jennette then explained that she had been trying to get Terry to 

lie down and go to sleep on the living room floor because they had a driver’s test the 

following morning. As she and Terry lay on the floor in the living room, Terry began 

telling her he had seen a picture of her on the Internet and that she cheated on him. Terry 

then told Jennette she was going outside with him and he wrapped something on her 

neck. Terry began pulling her by the hair and dragging her unclothed outside, but she 

kept going back in the house. At one point, Terry pushed Jennette down and began 

hitting her on the head. O’Barr asked Jennette whether she needed an ambulance. When 

she replied that she did not, O’Barr asked her more background questions. He then 

stated: “Ok I’m going to take this ... step by step, ok so that I can fully understand 

what’s going on, ok. So you were, when did the whole Facebook thing come up?”

After the above portion of Jennette’s interview was admitted into evidence, 

Officer O’Barr testified he saw three abrasions on Jennette’s left knee, two of which were 

still slightly bleeding, an injury to her hip, and a cut on her lower left lip that appeared to 

have been caused by her lip striking her tooth. The injuries to her knee and her hip were 

consistent with Jennette having been dragged on the ground. The cut on her lip was 

 

2

Jennette asserted her Fifth Amendment right against self-incrimination and did 

not testify at the trial regarding her statements to Officer O’Barr because she was 

concerned that she might subject herself to prosecution for filing a false police report. 

During the trial, defense counsel objected only on hearsay grounds to her statements to 

O’Barr that the prosecutor sought to introduce into evidence. The court overruled 

defense counsel’s hearsay objection. However, on its own initiative, the court also 

considered whether Jennette’s statements to O’Barr were testimonial and, thus, barred by 

Crawford, supra, 541 U.S. 36. The court ruled that the statements by Jennette that are 

summarized above were not testimonial and, thus, not barred by Crawford.
4.

consistent with her having been struck on the face. O’Barr also observed that Terry had 

several scratches and other abrasions on both his hands. 

Officer O’Barr also interviewed Terry. Terry told the officer that Jennette

suffered from bipolar disorder and she would “flip out” and blame things on him. That 

night, he had gotten up to smoke a cigarette when Jennette began to strike him. At one 

point, she went into the backyard, threw herself down on a concrete area, and told Terry 

he was going to jail. They both went back inside the house and Jennette struck him a few 

more times. Terry started to go out the front door when he saw O’Barr arrive. Terry 

claimed his hands were cut when he put them up to prevent Jennette from scratching his 

face. 

Officer O’Barr had Terry perform several tests to determine if he was under the 

influence of a controlled substance. The tests disclosed that Terry’s pulse was 106 beats 

per minute, his eyelids fluttered, and when exposed to the light of a flashlight, Terry’s 

pupils constricted from five millimeters to 4.5 millimeters and pulsated. These results led

O’Barr to believe Terry was under the influence of a controlled substance, and he placed 

him under arrest.

At the police station, Officer O’Barr performed a presumptive test on a urine 

specimen provided by Terry and the specimen tested positive for amphetamine and 

methamphetamine. The specimen was also sent to a lab and analyzed by Bill Posey, a 

toxicologist. According to Posey, there was no threshold level of methamphetamine that 

he used to determine whether a person was under the influence. Further, a positive result 

meant only that the person had used methamphetamine in the previous three to four days 

before the sample was taken. 

DISCUSSION

The Crawford Issue

Terry contends the court prejudicially erred when it allowed the prosecutor to 

introduce Jennette’s statements because they were testimonial and, thus, their admission 
5.

into evidence violated his Sixth Amendment right to confrontation pursuant to Crawford, 

supra, 541 U.S. 36. Respondent contends Terry forfeited this issue by his failure to 

object in the trial court on Crawford grounds to the introduction of Jennette’s statement. 

Alternatively, respondent contends that the introduction of this statement did not violate 

Crawford because it was not testimonial. We reject the respondent’s forfeiture argument 

but agree that the introduction of Jennette’s statement did not violate Crawford.

“The Confrontation Clause of the Sixth Amendment provides: ‘In 

all criminal prosecutions, the accused shall enjoy the right ... to be 

confronted with the witnesses against him.’ In [Crawford, supra,] 541 U.S. 

[at pp. 53–54, the United States Supreme Court] held that this provision 

bars ‘admission of testimonial statements of a witness who did not appear 

at trial unless he was unavailable to testify, and the defendant had had a 

prior opportunity for cross-examination.’ ” (Davis v. Washington (2006) 

547 U.S. 813, 822 (Davis).)

“[In Davis,] [t]he court succinctly distinguished testimonial from 

nontestimonial statements as necessary to decide the matters before it. 

‘Statements are nontestimonial,’ the court said, ‘when made in the course 

of police interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance to meet 

an ongoing emergency. They are testimonial when the circumstances 

objectively indicate that there is no such ongoing emergency, and that the 

primary purpose of the interrogation is to establish or prove past events 

potentially relevant to later criminal prosecution.’ [Citation.]” (People v. 

Cage (2007) 40 Cal.4th 965, 982 (Cage), fn. omitted, citing Davis, supra,

547 U.S. at pp. 819–824.)

In Cage, supra, 40 Cal.4th 965, the California Supreme Court stated,

“We derive several basic principles from Davis. First, as noted 

above, the confrontation clause is concerned solely with hearsay statements 

that are testimonial, in that they are out-of-court analogs, in purpose and 

form, of the testimony given by witnesses at trial. Second, though a 

statement need not be sworn under oath to be testimonial, it must have 

occurred under circumstances that imparted, to some degree, the formality 

and solemnity characteristic of testimony. Third, the statement must have 

been given and taken primarily for the purpose ascribed to testimony—to 

establish or prove some past fact for possible use in a criminal trial. Fourth, 

the primary purpose for which a statement was given and taken is to be 
6.

determined ‘objectively,’ considering all the circumstances that might 

reasonably bear on the intent of the participants in the conversation. Fifth, 

sufficient formality and solemnity are present when, in a nonemergency 

situation, one responds to questioning by law enforcement officials, where 

deliberate falsehoods might be criminal offenses. Sixth, statements elicited 

by law enforcement officials are not testimonial if the primary purpose in 

giving and receiving them is to deal with a contemporaneous emergency, 

rather than to produce evidence about past events for possible use at a 

criminal trial.” (Id. at p. 984, some italics added, fns. omitted.)

As a preliminary matter, respondent claims Terry forfeited his right to challenge 

Jennette’s statements to Officer O’Barr under Crawford because he did not expressly 

invoke that decision as a ground for excluding them in the trial court. However, an 

objection was not required because the court, on its own initiative, interjected the 

Crawford issue in ruling on Terry’s hearsay objection to these statements. The purpose 

of a timely, specific objection is to “to alert the trial court to the nature of the anticipated 

evidence and the basis on which exclusion is sought, and to afford the People an 

opportunity to establish its admissibility. [Citations.]” (People v. Williams (1988) 44 

Cal.3d 883, 906.) Those goals were met here when the court addressed the Crawford

issue on its own initiative. (People v. Brenn (2007) 152 Cal.App.4th 166, 173–174.)

Further, this case is similar to People v. Johnson (2007) 150 Cal.App.4th 1467 

(Johnson). In Johnson, Officer Sevillo responded to a report of a domestic disturbance, 

knocked on the door of the residence, and heard a woman scream. The defendant 

answered the door with blood on his hands and shirt. The woman continued to scream. 

The officer entered the house and, in a bathroom, found the woman sitting on a toilet,

slumped over covering her bloodied face with bloodied hands. The officer also observed 

that the woman’s nose was swollen and red, and the bridge of her nose was purplish. The 

woman was emotional, distraught, and crying as Sevillo spoke to her to see if she was 

okay and to make sure she received medical attention. The officer asked her what 

happened and she said, “ ‘He punched me in the face, look at my nose.’ ” (Id. at 

pp. 1472–1473.)
7.

In holding that the woman’s statements were not testimonial, and thus admissible, 

the Johnson court stated,

“We decide the issue by applying the test set forth by the court [in Davis, 

supra, 547 U.S. 813]: Did the circumstances objectively indicate that there 

was an ongoing emergency when the victim made the statement to Sevillo? 

We think they do. Sevillo heard the woman screaming as he stood at the 

door; the man who answered the door had blood on his hands; and the 

woman in the bathroom had a bloody, broken nose. That is the only 

information the officer had when he asked ‘What happened?’ Indeed, 

although he might have suspected domestic violence, Sevillo did not know 

at that point whether or not a crime had been committed. The officer 

interrupted an ongoing emergency and obtained information from the 

victim in order to assess the situation. Thus, her statement to him was not 

testimonial.” (Johnson, supra, 150 Cal.App.4th at p. 1479, original italics.)

Here, Officer O’Barr was responding to a possible domestic disturbance call at a 

residence. Upon arriving at the scene he encountered a man at the doorway who 

immediately went back inside upon making eye contact with the officer. O’Barr was 

then met by an undressed women who was hysterical and crying and who had sustained 

scrapes on her leg and hip and a cut lip. At that point O’Barr did not know whether a 

crime had been committed. Further, although O’Barr had allowed Terry to sit on the 

ground outside of his house, presumably while being watched by other officers, he did 

not know whether other suspects were involved in the disturbance or whether they were 

armed. Additionally, based on Jennette’s injuries and her emotional state, he had an 

objective basis for believing there might be an ongoing medical emergency, and he 

needed additional information about what had happened to determine whether the victim 

had suffered more serious injuries. Thus, the record supports the trial court’s conclusion 

that Jennette’s statements that were admitted into evidence were not testimonial because 

the primary purpose of O’Barr’s interrogating Jennette was to determine if she needed 

medical assistance.

Terry contends that there was no present ongoing medical emergency when 

Officer O’Barr spoke with Jennette because she told him that she did not need an 
8.

ambulance. He contends the situation was similar to Hammond v. Indiana (2005) 829 

N.E.2D 444 (Hammond), which was discussed in Davis, supra, 547 U.S. 813 and Cage, 

supra, 40 Cal.App.4th 965, two cases in which the court found that the victim’s 

statements to officers were testimonial. Terry is wrong.

Officer O’Barr did not have to accept Jennette’s statement that she did not require 

an ambulance at face value. In view of her obvious injuries and her agitated mental state,

O’Barr could have reasonably concluded that she might not be accurately reporting her 

medical needs and that some questioning was required in order to determine whether she 

might have suffered an injury that, in fact, did require medical treatment. In any event, 

Jennette did not tell the officer that she did not need an ambulance until after she had 

described the earlier incident during which Terry assaulted her. Thus, even if her 

statements after that point were “testimonial,” admission of these statements into 

evidence was harmless beyond a reasonable doubt. 

Further, Hammond and Cage are easily distinguishable. In Hammond, the officer 

responded to a domestic violence call and did not encounter an ongoing emergency. The 

officer did not hear any arguments and or encounter any ongoing commotion. Instead,

when he arrived, a woman told the interrogating officer that everything was fine, and she 

apparently did not have any injuries. (Davis, supra, 547 U.S. at p. 829.) In finding that 

the victim’s oral statements in Hammond were testimonial, the court noted that these 

statements were “neither a cry for help nor the provision of information enabling officers 

immediately to end a threatening situation[.]” (Davis, supra, at p. 832.)

In Cage, a male juvenile whose mother slashed his face with a piece of glass, was 

interviewed by a police officer in a hospital emergency room more than an hour after the 

assault. (Cage, supra, 40 Cal.4th at pp. 984–985.) Thus, Cage is also easily 

distinguishable from the instant case because with the victim in a hospital room more 

than an hour after the assault, there was no objective basis for concluding that the 

victim’s statements were elicited to deal with a contemporaneous medical emergency. 
9.

Accordingly, we conclude the court did not abuse its discretion when it allowed the 

prosecutor to introduce into evidence Jennette’s statements to Officer O’Barr.

The Miranda Issue

Terry contends he should have been given his Miranda warnings because the 

evidence was uncontested that he was in custody when he was interrogated by Officer 

O’Barr. Alternatively, he contends he was denied the effective assistance of counsel if he 

forfeited this issue by defense counsel’s failure to object. We reject both contentions.

“ ‘Miranda requires that a criminal suspect be admonished of 

specified Fifth Amendment rights. But in order to invoke its protections, a 

suspect must be subjected to custodial interrogation ....’ [Citation.] ‘Thus 

two requirements must be met before Miranda is applicable; the suspect 

must be in “custody,” and the questioning must meet the legal definition of 

“interrogation.” ’ [Citation.] The prosecution has the burden of proving 

that a custodial interrogation did not take place. [Citation.]

“A person is in custody for purposes of Miranda if he is ‘deprived of 

his freedom in any significant way or is led to believe, as a reasonable 

person, that he is so deprived.’ [Citation.] ‘Interrogation consists of 

express questioning or of words or actions on the part of police officers that 

they should have known were reasonably likely to elicit an incriminating 

response.’ [Citations.]” (People v. Whitfield (1996) 46 Cal.App.4th 947, 

953, original italics.)

Terry did not object on Miranda grounds to the introduction of his statements to 

Officer O’Barr. Thus, he forfeited this issue on appeal. (People v. Doolin (2009) 45 

Cal.4th 390, 437.)

Moreover, “[t]o prevail on a claim of ineffective assistance of counsel, the 

defendant must show counsel’s performance fell below a standard of reasonable 

competence, and that prejudice resulted. [Citations.] When a claim of ineffective 

assistance is made on direct appeal, and the record does not show the reason for counsel’s 

challenged actions or omissions, the conviction must be affirmed unless there could be no 

satisfactory explanation. [Citation.] Even where deficient performance appears, the 

conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but 
10.

for counsel’s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.)

The record here does not indicate whether Terry was read his Miranda rights prior 

to talking with Officer O’Barr. This, however, does not necessarily mean that he did not 

receive these admonitions. Since Terry did not object to his statements being introduced 

into evidence on Miranda grounds, this may simply mean that the prosecutor elected to 

not introduce evidence that Terry was read these rights because he did not have to. 

Further, Terry’s statements to O’Barr allowed defense counsel to present Terry’s theory 

of self-defense to the court without subjecting him to being cross-examined. Thus,

defense counsel may have had a tactical reason for not objecting to the introduction of 

these statements. In either case, Terry has not met his burden of showing that his defense 

counsel provided ineffective representation.

Further, as noted above, Terry has not shown that he was subject to a custodial 

interrogation that triggered his right to be read his Miranda rights or that these rights 

were not read to him. Thus, Terry has also failed to show that he was prejudiced by 

defense counsel’s failure to object on Miranda grounds to his statements being 

introduced into evidence. Accordingly, we reject Terry’s ineffective assistance of 

counsel claim.

The Sufficiency of the Evidence Claim

Terry contends that the only evidence that supports his conviction for being under 

the influence was Officer O’Barr’s opinion testimony, which he contends was 

unsubstantiated and unsupported by the record. Thus, according to Terry, the evidence is 

insufficient to support his conviction for being under the influence of methamphetamine.

“When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 
11.

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.] ...We presume in support of the 

judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor revaluates a witness’s credibility. [Citation.]” (People v. 

Lindberg (2008) 45 Cal.4th 1, 27.)

Terry was charged with using and being under the influence of methamphetamine 

in violation of Health and Safety Code section 11550. 

In addressing the “being under the influence” prong of Health and Safety Code 

section 11550, the Supreme Court stated:

“One may be guilty of being under the influence of drugs in violation of 

Health and Safety Code section 11550 by being in that state in any 

detectable manner: ‘ “The symptoms of being under the influence within 

the meaning of that statute are not confined to those commensurate with 

misbehavior, nor to those which demonstrate impairment of physical or 

mental ability.” ’ [Citations.]” (People v. Canty (2004) 32 Cal.4th 1266, 

1278, first italics in original, second italics added.)

Terry provided a urine sample that tested positive for the presence of 

methamphetamine. Additionally, Terry exhibited the following symptoms that, 

according to Officer O’Barr, indicated he was under the influence of methamphetamine: 

Terry’s pulse rate was 106 beats per minute, his pupils were dilated to five centimeters, 

his eyelids were fluttering, and his pupils pulsated when exposed to the outer beam of 

O’Barr’s flashlight. Thus, the record contains evidence indicating that Terry was under 

the influence of methamphetamine in a detectable amount.

Terry contends Officer O’Barr’s testimony was insufficient to prove he was under 

the influence of methamphetamine because he passed one test, and the toxicologist 
12.

contradicted O’Barr’s testimony that Terry’s pupillary dilation indicated that he was 

under the influence. Terry is wrong.

Terry does not explain how his ability to pass one test undermines the significance

of his positive test for the presence of methamphetamine in his system or the other 

physical symptoms of being under the influence of methamphetamine that he exhibited. 

Further, as a reviewing court, “ ‘[w]e resolve neither credibility issues nor evidentiary 

conflicts;...’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357, italics added.) 

Accordingly, we conclude that the evidence is sufficient to sustain Terry’s conviction for 

violating Health and Safety Code section 11550.

DISPOSITION

The judgment is affirmed.