Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 07HF2007 of Orange County, Richard W. Stanford, Jr., Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Emily Hanks and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found defendant Jeffrey Patrick Haley guilty of misdemeanor assault (Pen. Code, § 240), possession of a firearm by a felon (Id., § 12021, subd. (a)(1)), misdemeanor vandalism (Id., § 594, subd. (a), (b)(2)(A)), four misdemeanor counts of violation of a protective order (Id., § 166, subd. (c)(1), (2)), willful infliction of corporal injury on a cohabitant (Id., § 273.5, subd. (a)), and willful infliction of corporal punishment on a child (Id., § 273d, subd. (a)).
Defendant contends the trial court erred by admitting evidence of a 1997 domestic violence incident under Evidence Code section 1109. The evidence had been excluded at his first trial, which ended in a mistrial. He complains the court lacked authority to revisit the evidentiary ruling, abused its discretion under section 352, and violated his constitutional rights to due process and equal protection of the laws. Defendant also argues the court abused its discretion by excluding under section 352 an edited 10-minute tape recorded statement the victim gave to police at the scene of one of the incidents, and claims reversal is required based on the cumulative effect of the errors. Finally, in a supplemental brief he argues he is entitled to additional custody credits based on recent amendments to section 4019. For the reasons expressed below, we affirm the judgment, but remand for the trial court to recalculate defendant’s custody credits.
All further statutory references are to the Evidence Code unless otherwise noted.
I
Factual and Procedural Background
Kimberly Radfar, a recent divorcee after a 20-year marriage, met defendant, who worked for a mortgage company, when he helped her obtain a loan to buy out her former husband’s share of the marital home. They began dating in early June 2007.
Radfar testified they had tumultuous relationship. Between June and September 2007, she claimed defendant became progressively more aggressive, violent and controlling, made threats to “bury [her] in the desert, ” and physically abused her by, among other things, punching her in the stomach, which he referred to as “wind[ing]” her. On one occasion she fell and hit her face on a dresser, causing her nose and lip to bleed.
Radfar kept a gun belonging to her former husband in a metal box in her bedroom. She showed the gun to defendant after he began staying at her house in July. He took possession of the firearm, stating “it was his now.” He put it in his own safety box and kept the keys with him. They sometimes used it to shoot cans during camping trips. Defendant took the gun with them when they moved into his Costa Mesa home in September.
On the morning of September 30, 2007, defendant and Radfar met defendant’s coworkers at a Newport Beach restaurant for breakfast. Radfar became jealous when defendant’s former girlfriend appeared at the restaurant. Radfar claimed they argued on the way to the swap meet after leaving the restaurant. Defendant was “freaking out, ” and struck her in the face and ribs. He broke her windshield with his fist, “ripped” off the rear view mirror, damaged the radio, and broke her cell phone by grabbing it out of her hand. Defendant threatened if she called the police “no one would come out of the house alive, ” stating he did not want to go back to prison.
After they arrived home, Radfar claimed defendant attacked her on the stairs, pulling her hair, knocking her down, and kicking her. He walked into the bedroom, retrieved the gun, loaded it with two bullets, closed the blinds, and stated there was one bullet for each of them, pointing the gun at her and himself. After he fell asleep, she took the gun and slid it under the bed.
When police officers arrived to investigate, Radfar denied she had been abused, denied being afraid of defendant, and claimed the gun belonged to her ex husband. She denied that defendant had possessed the weapon, explaining her ex husband had been stalking her and therefore she brought the gun with her. Officers recovered the weapon, which contained one round in the chamber and another in the magazine. The officers issued an emergency protective order barring defendant from contacting Radfar.
Defendant’s father testified that on September 30, defendant came downstairs with the gun, chambered a round and told his father “don’t worry. I’m not going to shoot you. I’m going to shoot myself.” He put the gun to his head, and then walked back upstairs.
Despite the protective order, Radfar and defendant spent the next several weeks together at motels. She hired a lawyer to represent him in the criminal case. She also attended court in October in an unsuccessful attempt to limit the protective order to “no violent contact, ” explaining she was “absolutely not afraid” of defendant. She and defendant embarked on a four-day cruise with defendant’s boss October 19. She claimed defendant assaulted her on the cruise, and punched her in the breast after her October 23 breast augmentation surgery.
In December 2007, Radfar and defendant lived together in her rented Huntington Beach home. She accepted his Christmas eve marriage proposal. On December 27, the couple rented an RV and went camping in Ocotillo Wells with friends. Shortly after they arrived, the couple argued about their engagement and whether Radfar should allow her 17-year-old daughter, T., to drink alcohol. The argument escalated. While in the RV, defendant “smacked” Radfar’s head with an open hand, grabbed and tore out some of her hair, and ripped the ring off her finger. He hit and kicked her numerous times, inflicting bruises and cuts, and threatened to kill her. The couple’s friend and camping companion, Frank Iannantuono, entered the RV and saw defendant twist Radfar’s arm while trying to remove her engagement ring. As Iannantuono escorted Radfar out of the RV, defendant punched Radfar in the chest. Defendant fled the scene in the RV with his children.
A friend drove Radfar’s group back to Huntington Beach and they called the police en route. Police officers arrested defendant the following day when he returned to Radfar’s home with the RV.
Radfar’s friend Jenean McKinney and McKinney’s daughter accompanied them on the December camping trip. McKinney saw T.’s swollen and bleeding face, and heard T. say defendant had kicked her. McKinney also saw Radfar’s torn hair, and her red neck and face. After they got back to Huntington Beach, McKinney took them to her hotel where they stayed for more than a week. Defendant called Radfar and McKinney’s cell phones hundreds of times. McKinney spoke with him once or twice. He asked her to tell Radfar he was sorry and that he loved her. He subsequently told McKinney that if she did not have Radfar call him he would ruin McKinney’s life by telling her husband she was having an affair.
T. testified defendant punched Radfar more than once and pulled out a portion of her hair. T. attempted to enter the RV, but defendant pushed her down the stairs of the camper, causing her to fall to the ground. As T. attempted to assist her mother out of the camper, defendant kicked T. in the face.
Defense witnesses, including defendant’s former boss, Radfar’s personal trainer, and her plastic surgeon, did not recall seeing any bruises or marks on Radfar.
Defendant denied inflicting any physical abuse on Radfar. According to defendant, Radfar had “trust” issues. In late July, she asked him to call his former girlfriend Amanda on a speakerphone and tell her he and Radfar were “going to move forward.” When Amanda expressed affection for him, Radfar “could not handle” it, and hit defendant several times in the face with a closed fist. He grabbed her forearms, sat her down on a chair, and departed.
Radfar told him about her former husband’s gun and he moved it from a Tupperware box to a black metal cash box supplied by Radfar. He put the key on a candlestick on a shelf in the closet.
Defendant denied hitting Radfar in the car on September 30. As for the vandalism charge, he claimed that when he attempted to turn the radio down, Radfar reached for it at the same time. She forcefully pulled his hand back, causing him to strike and break the mirror. He threw the mirror to the floorboard, but it hit the dash and cracked the windshield.
When they arrived home, Radfar and then defendant walked upstairs. When he turned to go into the bedroom, Radfar pointed the gun at him and sobbed. He grabbed the gun away from her, made sure it was unloaded, and threw it on the bed. He pulled her close by her ears, cupped her head in his hands and asked why she was “doing this?”
Later, defendant admitted he lied to the police officers when he denied arguing with Radfar or his father. He also admitted he lied when he denied damaging Radfar’s car, and that he knew nothing about a gun. Radfar, who was impeached on cross-examination with inconsistencies and omissions from prior testimony and statements, admitted lying previously to the police and in court about the events of September 30, explaining “it’s hard to understand caring about someone who would hurt you.”
Defendant also denied physically abusing Radfar at Ocotillo Wells in the December incident. Radfar slipped stepping on a mattress while reaching for a cupboard. He grabbed her arm and decided to take the ring off her finger because she had violated a “stipulation” that the “accusations” needed to stop. They struggled on the bed and he ultimately succeeded in removing the ring. He walked her down the hallway, and out of the RV, and she fought him the whole way. As she went down the stairs, she slipped and landed on the second step. He suspected Radfar accidently kicked T. Defendant could not explain how Radfar suffered her injuries, but he denied inflicting them. He admitted he lied to the social worker when he claimed he had no history of domestic violence.
The parties stipulated that on December 16, 1997, defendant committed a battery and corporal injury on his wife, and dissuaded and threatened a witness to the crime.
Following a trial in January 2009, a jury found defendant guilty of the offenses listed above and defendant subsequently admitted the December 2007 offenses occurred while he was released on bail. (Pen. Code, § 12022.1, subd. (b).) In February 2009, the trial court sentenced defendant to a nine-year, eight-month prison term.
II
Discussion
A. The Trial Court Did Not Abuse Its Discretion Admitting a Prior 1997 Domestic Violence Incident
Before defendant’s first trial, the prosecutor sought the court’s approval to introduce evidence concerning a 1997 incident that resulted in defendant’s misdemeanor conviction for spousal abuse and witness intimidation. The prosecutor stated she intended to use the evidence to impeach defendant’s testimony if he stated or implied he had not abused women in the past, or suggested Radfar lied about the charges. She argued the evidence should be admissible, “whether it be impeachment, whether it be 1102 evidence, if he’s going to paint himself... as a person that doesn’t beat women or who is not violent....” She did not plan on offering the evidence under section 1109 because “it is past seven years old.” The trial court ruled it would “allow [the evidence] for impeachment purposes only.” The court advised the parties to sanitize the nature of the convictions.
Section 1102 provides: “In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
Section 1109, subdivision (a)(1), provides: “Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Subdivision (e) specifies that acts of domestic violence occurring 10 or more years earlier are inadmissible “unless the court determines that the admission of this evidence is in the interest of justice.”
The court declared a mistrial during Radfar’s testimony because the prosecution failed to provide discovery to defendant’s attorney. Before the retrial, a different prosecutor and judge were assigned to the case. During pretrial motions, the prosecutor sought to admit the 1997 incident under section 1109. The prosecutor intended to prove the incident by using a certified rap sheet, but also had subpoenaed defendant’s former wife to testify. Defendant’s counsel objected he had not received adequate notice and urged the court not to allow the prosecutor to use a redacted rap sheet to prove the conduct. On the notice issue, defendant’s lawyer conceded the police reports he received covered the 1997 incident, but he assumed the agreement at the previous trial that the prosecutor would not introduce the prior conduct under section 1109 remained in effect. Summarizing, defendant’s lawyer explained he “was on notice that it was not going to be introduced” and there had not been “any further discussions as to whether or not that was going to change....”
Section 1109, subdivision (b), provides: “In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.” Section 1054.7 provides, “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.”
The trial court concluded the prosecution had complied with section 1109’s disclosure requirements by supplying the police reports, but the court would not allow the prosecutor to use a rap sheet to prove the conduct. Further discussion centered on whether the prosecutor could use a Tahl form to prove the prior conduct, but the court replied that “the exact nature of the proof” was not “critical” at that moment.
After defendant’s notice objection was overruled, defendant argued the court should exclude the evidence under sections 1109 and 352 because the prior conduct occurred 10 years earlier. The court overruled defendant’s objection, explaining the prior incident constituted “the type of propensity evidence that the code section is aiming to have the jury look at, ” and the court would not exclude it merely because “it’s a little bit over the ten-year limit.” The parties then crafted a stipulation that the court read to the jury: “On December 16, 1997, the defendant... dissuaded a witness, threatened a witness with a crime, and willfully and unlawfully committed a battery and corporal injury on his wife.”
1. The Trial Court Was Not Bound by an Evidentiary Ruling Made at an Earlier Trial
Citing California and federal authority, defendant first contends the court lacked authority to change the evidentiary ruling made at the first trial. The Attorney General responds defendant forfeited this appellate claim because he did not raise it below, and the court was not bound by the first trial court’s ruling. We agree with the Attorney General on both points.
As recounted above, defendant objected to the prior incident based on lack of notice and the remoteness of the conviction. Defendant’s lawyer at the retrial never argued the second judge lacked the authority to change an evidentiary ruling made at defendant’s first trial. Thus, defendant forfeited this contention by failing to object on this ground in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 989; § 353; People v. Neely (1999) 70 Cal.App.4th 767, 781 [law of the case issue forfeited].)
Defendant’s claim fares no better on the merits. The California Supreme Court has held reversal of a judgment on appeal and remand for a new trial “permits... [the] renewal and reconsideration of pretrial motions and objections to the admission of evidence.” (People v. Mattson (1990) 50 Cal.3d 826, 849; see People v. Castello (1998) 65 Cal.App.4th 1242, 1249 [court could not operate successfully with a requirement of infallibility in its interim rulings; miscarriage of justice results where a court is unable to correct its own perceived legal errors, particularly in criminal cases where life, liberty, and public protection are at stake].) The same rule applies to a new trial after a mistrial. (People v. Riva (2003) 112 Cal.App.4th 981, 992.)
Defendant’s reliance on In re Alberto (2002) 102 Cal.App.4th 421 (Alberto) is misplaced. There, a judge set bail for a criminal defendant awaiting trial. A different judge increased the bail amount solely because he believed the first judge’s original bail determination was erroneous. The appellate court reversed, observing that in a criminal case, the court generally has the authority to correct its own prejudgment errors and there are few limits on a court’s power to reconsider interim rulings. But different policy considerations apply when a different judge overturns an existing order because the power of one judge to vacate an order made by another judge is limited. “This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. ‘If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.’” (Id. at p. 427.) For one judge to “nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” (Ibid.)
The concerns expressed in Alberto do not exist following a mistrial when a new judge is assigned to retry the case. A mistrial dissolves all the evidentiary rulings made in that proceeding; it is “‘as if there had been no trial on that issue....’” (People v. Sons (2008) 164 Cal.App.4th 90, 99 (Sons).) In Alberto, a judge overturned an existing order made by another judge of the same court. In contrast, the evidentiary rulings in a case ending in a mistrial cease to exist and therefore are not binding on subsequent trial courts.
Defendant also relies on Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091 (Bradley). There, the trial court instructed the jury on entrapment at the defendant’s first trial. The jury did not reach a verdict, and the court declared a mistrial. On retrial, defendant’s prior testimony was read to the jury, but the new trial judge refused to supply an entrapment instruction. The majority analyzed the evidence and concluded an instruction on the defense was warranted, noting the unfairness that “the trial judge essentially left the jury with petitioner’s confession to the offense, without ever allowing them to consider petitioner’s preclusive defense.” (Id. at p. 1098.) According to the court, the failure to instruct the jury on entrapment deprived him of his due process right to present a full defense.
The court also concluded California’s “law of the case” doctrine applied, citing Alberto: “In the instant case, the second judge simply ignored the findings of the previous judge, without even bothering to assert that the earlier decision was erroneous or that the circumstances of the case had changed. This kind of unauthorized second-guessing is impermissibly arbitrary and can amount to a violation of Due Process.” (Bradley, supra, 315 F.3d at p. 1098.) As the dissent noted, however, “The majority fails to observe a crucial distinction between the present case and Alberto. In Alberto, one trial judge overruled a coequal trial judge’s in-force bail determination in the same case. [Citation.] In this case, Petitioner’s first trial ended in a mistrial. The judge in a second trial is not compelled to follow determinations of fact or law established by the judge in an earlier proceeding that ended in a mistrial.” (Bradley, at p. 1107, original italics [dis. opn. of Graber, J.].) To the extent Bradley has any application here, the dissent correctly analyzed California law. (See Sons, supra, 164 Cal.App.4th at p. 100 [law of the case doctrine does not apply to rulings of the trial court]; see also People v. Crittenden (1994) 9 Cal.4th 83, 120, fn.3 [California courts are not bound by decisions of the lower federal courts].)
Finally, we observe defendant did not argue in the trial court, and does not raise on appeal, a claim that the parties intended the stipulation or agreement at the first trial also would apply to any subsequent retrial. Accordingly, defendant’s claim the court lacked authority to admit the evidence at his retrial fails.
2. The Trial Court Did Not Abuse Its Discretion by Admitting Defendant’s Prior Acts of Domestic Violence Under Section 1109
Defendant also contends the trial court abused its discretion in admitting defendant’s prior acts of domestic violence under section 1109. We disagree.
The Legislature has determined evidence of other acts is important in domestic violence cases because of the often repetitive nature of domestic violence crimes, and the difficulties of proof associated with frequently uncooperative victims and third-party witnesses who may fear retaliation from the abuser. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333.) The trial court’s decision to admit evidence is a matter committed to its discretion and will not be disturbed absent a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Geier (2007) 41 Cal.4th 555, 585.)
Defendant first contends section 1109 is facially invalid under the federal due process and equal protection clauses. He acknowledges California courts have upheld the constitutionality of admitting evidence of prior sexual misconduct under section 1108 and prior domestic violence under section 1109 based on the essential safeguard section 352 provides against a fundamentally unfair trial. (People v. Falsetta (1999) 21 Cal.4th 903, 922; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028.) Defendant also acknowledges precedent rejecting claims section 1109 violates equal protection. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313.) Defendant candidly admits he raises the issue to preserve it for federal review. Accordingly, we reject his constitutional claim.
Defendant also argues the court abused its discretion in admitting the evidence because his “domestic violence conviction was [11] years old, ” and the prior incident was “far more troubling.” The charged domestic violence allegedly occurred between June and December 2007. The prior act occurred on December 16, 1997. Thus, many of the charged acts occurred within the 10-year window. And the statute plainly provides the court may admit older evidence in the interest of justice. Incidents as remote from the charged offense as 30 years have been admitted under the analogous provisions of section 1108. (People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [evidence admitted despite “30-year gap” between prior act and charged offense]; People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 [15 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [admitting evidence of 20 to 30 year old acts].) The record reflects defendant was convicted of other misconduct after 1997, some of it violence against his former wife. The prosecutor did not seek to admit this evidence, but it may have reasonably informed the court’s exercise of discretion because it demonstrated defendant had not led a blameless, nonviolent life for 10 years after the 1997 incident. Nothing suggests the trial court failed to consider appropriate factors when counsel objected based on remoteness, and we cannot conclude on this record the trial court abused its discretion when it impliedly concluded the evidence of defendant’s past domestic violence furthered the interests of justice. (People v. Carmony (2004) 33 Cal.4th 367, 377-378.)
Defendant’s claim the prior conduct was “far more troubling” fails because the record prevents appellate assessment of whether the trial court abused its discretion in finding the probative value of the evidence outweighed its prejudicial effect. The parties did not conduct a section 402 hearing with the former wife or supply the trial court with the prior victim’s statement or testimony, and the parties agreed to present the evidence to the jury in a sanitized stipulation. If the 1997 incident involved defendant throwing “his ex-wife through a sliding glass door, ” the jury did not learn this fact in connection with the 1997 incident. In sum, we conclude the trial court did not abuse its discretion in admitting evidence of defendant’s past acts of domestic violence.
Radfar’s testimony that defendant told her he had thrown his former wife through a sliding glass door was not admitted for the truth as propensity evidence, but to establish elements (verbal threats, sustained fear) constituting a violation of Penal Code section 422 on the current occasion.
B. Any Error in Failing to Admit Portions of Radfar’s Pretrial Tape-Recorded Statement to Police Was Harmless
At trial, defendant’s attorney extensively cross-examined Radfar, often impeaching her with inconsistent statements, particularly those she provided to police officers about the events occurring on September 30. Radfar explained she attempted to protect defendant and therefore lied to the officers. She claimed her prevarications included her denial defendant had assaulted her, and her statements that she brought the gun into the home, the gun did not belong to defendant, and she did not see him with the gun.
Before presenting the defense, defendant’s attorney sought to introduce into evidence a 10-minute segment of the hour-long taped interview officers conducted with Radfar on September 30. Counsel argued Radfar’s demeanor during the interview showed she told the truth when she exonerated defendant of any wrongdoing, explaining “she didn’t have the opportunity to make up certain things, that she was asked questions and she immediately answered them.”
The trial court allowed defendant to play “a minute or so” of the redacted 12-page transcript, consisting of the first two pages, but excluded under section 352 defendant’s request to play the entire10-minute tape, explaining it amounted to an “undue consumption of time.”
Defendant recalled Radfar, cross-examined her extensively about her inconsistent statements, and played for the jury the one-minute portion of the audiotape where Radfar denied being afraid of defendant and adamantly objected to the police officer obtaining a emergency restraining order to protect her. The court allowed defendant’s attorney to play another portion of the audiotape during cross-examination of Radfar, dealing with her denial that the gun belonged to defendant. This brief portion covered one page of the transcript.
Defendant contends the trial court erred in failing to admit the entire 10 minute portion of Radfar’s audiotaped police interview because the probative value of hearing her exonerate defendant substantially outweighed any undue consumption of time. Defendant also argues the trial court’s ruling violated his federal constitutional rights under the Fifth, Sixth, and Fourteenth Amendments. We conclude the trial court erred under state law in not playing the admissible portions of defendant’s edited audiotape, but the error was harmless.
Section 352 allows the trial court to exclude relevant evidence only “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Italics added.) We may not disturb the trial court’s ruling absent an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The probative value of hearing Radfar utter her pretrial statements exonerating defendant from wrongdoing is compelling. These statements in large part contradicted Radfar’s trial testimony, which described events that, if believed, would lead to defendant’s conviction for aggravated assault likely to produce great bodily injury (count 3), assault with a semi-automatic firearm (count 4), and felon in possession of a firearm (count 5). Defendant based his defense on Radfar’s lack of credibility. True, defendant impeached Radfar with her prior inconsistent statements. But an audiotaped recording of her articulating statements exonerating defendant may have provided the jury with additional insight into evaluating Radfar’s credibility. Defendant’s lawyer evidently thought so because, according to him, Radfar’s forceful and unequivocal statements displayed no hesitancy or vacillation, characteristics one might expect to hear from a person who later claimed that shortly before police arrived she believed she was going to die because defendant pointed a loaded gun at her.
The trial court instructed the jury they “alone, must judge the credibility or believability of the witnesses.” To that end, the court instructed them to consider the “witness’s behavior while testifying” and “the witness’s attitude about the case or about testifying.” If a witness’s courtroom demeanor is probative evidence of the witness’s credibility, it follows with equal force the jury should have heard and assessed Radfar’s tape-recorded pretrial statements exonerating defendant, which conflicted with her trial testimony.
On the other side of the ledger, we fail to see how playing a 10 minute tape, consisting of only 12 transcribed pages, would constitute an “undue” consumption of time that “substantially outweighed” the probative value of the tape. People v. Miles (1985) 172 Cal.App.3d 474 is instructive. There, the defendant sought to introduce a five-minute tape recorded telephone call he placed to the police department. The defendant informed the dispatcher that he had an outstanding arrest warrant and wanted an officer to pick him up at a specified location. The defendant argued the tape demonstrated he was too intoxicated to have committed the charged robbery that occurred approximately 30 minutes before his phone call to the police. (Id. at pp. 477-478.) The trial court under section 352 excluded the tape as an undue consumption of time and cumulative of other evidence. (Id. at p. 478.) The appellate court concluded it was an abuse of discretion to exclude the tape, explaining that the defendant’s credibility was vital to his defense and “[t]he actual tape recording of the conversation with the police operator was of substantial probative value to the defense as it may have shed light on [the defendant]’s testimony.” (Id. at p.479.) Similarly, the manner in which Radfar denied defendant’s wrongdoing to the officers may have “shed light” on defendant’s claim he did not possess the gun or assault Radfar. The trial court erred in failing to admit defendant’s edited ten-minute audio-taped version of Radfar’s police interview.
We note the trial court could have excluded any statement in the interview that was inadmissible on other grounds.
In reaching this result, we do not consider defendant’s claim the trial court violated his constitutional right to present a defense under the Fifth and Sixth Amendments. Defendant forfeited this issue by failing to raise the matter below. He may, however, argue the trial court’s error in excluding the evidence had the additional legal consequence of violating due process. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [party may not base appeal on a reason different from the one stated at trial because the trial court cannot err “in failing to conduct an analysis it was not asked to conduct”].) A due process violation occurs only if the court’s error made the trial “fundamentally unfair.” (Id. at p. 439, original italics.) Here, where defendant fully explored on cross-examination Radfar’s inconsistent statements made during her police interview, we conclude defendant’s inability to present evidence of her demeanor during that pretrial interview did not offend a fundamental principle of justice “rooted in the traditions and conscience of our people....” (People v. Falsetta (1999) 21 Cal.4th 903, 913.)
Thus, whether the error here requires reversal is analyzed under state law. Under this standard, we must determine whether it is reasonably probable the verdict would have been more favorable to defendant absent the error. (Partida, supra, 37 Cal.4th at p. 439.) We conclude defendant would not have fared any better even had the jury heard defendant’s entire edited version of Radfar’s police interview.
Radfar’s inconsistent statements on the edited tape defendant sought to introduce concerned three charges: assault likely to produce great bodily injury, assault with a firearm, and felon in possession of a firearm. Because the jury acquitted defendant of the aggravated assaults, only his conviction for being a felon in possession of a gun is arguably affected by the error. The jury, however, heard Radfar’s tape-recorded denial that the gun belonged to defendant. Moreover, defendant’s father testified he observed defendant twice carry the firearm downstairs on September 30, 2007, which occurred after defendant and Radfar had returned from breakfast and a trip to the swap meet. Both times defendant’s father watched defendant point the gun at his own head and threaten suicide. Defendant’s father also saw defendant slide a bullet into the chamber, and heard the same sound after defendant walked upstairs. The jury undoubtedly concluded defendant’s own father had no reason to lie about defendant’s gun possession. This evidence therefore corroborates Radfar’s trial testimony and demonstrates that listening to Radfar’s tape-recorded statements to investigators would not have produced a more favorable outcome for defendant. Accordingly, the error here is harmless.
C. Cumulative Error
Defendant contends cumulative error requires reversal of his convictions. A “series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) The issue is not whether the defendant received an error-free and perfect trial, which is rarely, if ever achieved, but whether his guilt on the charge was “fairly adjudicated.” (Ibid.; United States v. Hasting (1983) 461 U.S. 499, 508-509.) We must affirm “absent a clear showing of a miscarriage of justice.” (Hill, at p. 844.)
As explained above, the error in excluding portions of the September 30 tape was harmless, and there is no additional error to cumulate. Absent multiple errors to cumulate, the cumulative error doctrine does not apply.
D. Presentence Conduct Credit
The trial court sentenced defendant on February 20, 2009, and awarded him credits for 263 days of actual custody (Pen. Code, § 2900.5) and 131 days of work-conduct credit, calculated at the rate of two days for every four days in custody, per Penal Code section 4019. The Legislature amended section 4019 effective January 25, 2010, to allow offenders convicted of nonserious and nonviolent crimes to earn presentence conduct credit at the rate of two days for every two days in custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendant contends he is entitled to retroactive application of the new law and therefore should receive additional conduct credits. We agree.
Generally, legislative amendments are presumed to operate prospectively, unless there is an express declaration to the contrary. Because the amendment to Penal Code section 4019 does not state whether retroactive application is permitted, the Attorney General argues we must follow the general rule of prospective application. But in In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court concluded that when the Legislature amends a statute to mitigate punishment, “the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) The court explained, “It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
Courts have traditionally deemed legislative enactments that increase the amount of credits a defendant may accrue as statutes that mitigate punishment for purposes of the Estrada rule. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389 [statute involving custody credits].) Following this tradition, the majority of courts that have considered the issue have determined the recent amendment to Penal Code section 4019 falls within the Estrada rule because section 4019 effectively reduces the amount of time eligible defendants will have to spend in prison. (People v. Bacon (2010) 186 Cal.App.4th 333, People v. Keating (2010) 185 Cal.App.4th 364; but see People v. Eusebio (2010) 185 Cal.App.4th 990.)
Although the Supreme Court has granted review of the issue and will have the final say on the matter (see People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808), we agree with the reasoning expressed by the courts in the majority and follow them in concluding the amendment to Penal Code section 4019 should be applied retroactively to cases pending on appeal. Pursuant to the amendment, we direct the trial court on remand to recalculate the number of days of presentence conduct credit for defendant and to modify the abstract of judgment accordingly.
III
Disposition
The trial court is directed to recalculate the number of days of presentence conduct credit under amended Penal Code section 4019, to prepare an amended abstract of judgment accordingly, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.