Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 62-035982, 62-027429, 62-031052.
OPINION
NICHOLSON, P.J.
A jury convicted defendant Lamarr Brion Craig of dissuading a witness (Pen. Code, § 136.1, subd. (c)(1) -- count one), making criminal threats (§ 422 -- count two), violating a court order (§ 166, subd. (c)(1) -- counts three, four), resisting arrest (§ 148, subd. (a) -- count five), and unlawfully possessing a smoking device (Health & Saf. Code, § 11364 -- count six). In a trial by court, the court found defendant had a prior serious felony strike conviction (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d)).
Hereafter references to undesignated sections are to the Penal Code.
Sentenced to state prison for 11 years, defendant contends (1) that, for various reasons, the trial court erred by admitting other crimes evidence; (2) the trial court’s failure to instruct the jury, sua sponte, with CALJIC No. 2.50.2, defining preponderance of the evidence, was federal and state constitutional error; (3) the cumulative effect of the errors was prejudicial; and (4) the trial court erred in imposing various fines and fees. While we reject defendant’s first three contentions, we agree there was some error regarding imposition of the fees.
The various reasons are set forth as defendant’s first four contentions.
FACTS
In May 2003, Alison Gainer was living in Roseville with her two young daughters in the home of her mother Kathleen. Defendant is the father of Alison’s youngest daughter. He was subject to a restraining order against contacting Alison, Kathleen, her oldest daughter, and Bryan Gusman, an ex-boyfriend of Alison’s who was the father of her oldest daughter.
On May 16, defendant telephoned Alison and the two commenced arguing. Kathleen took the phone from Alison, told defendant he was in violation of the restraining order and that she would call the district attorney’s office and the police if he called again. In a “very angry” tone, defendant called Kathleen a “fucking bitch” and told her he would kill her if she reported him. Defendant’s threat caused Kathleen to be “particularly afraid,” and she remained frightened until defendant was taken into custody several days later. Kathleen took defendant’s threat “very seriously” and immediately reported it to law enforcement.
When Kathleen was asked why she was afraid of defendant, she explained that defendant had shown “a lot of very negative behavior and threats, been abusive verbally with me, my daughter, physically abusive with my daughter and had basically caused hell in my life for a couple of years.” One time, Alison had called Kathleen at work and told her that defendant had gone after Gusman with a knife because he believed she and Gusman were having an affair. Kathleen also was aware that defendant had been jailed for stalking Alison.
On many occasions, he would come in the middle of the night and rattle the windows. Then, just to let Kathleen and Alison know that he was watching them, defendant would call and say things like, “You just turned the light off” and describe what one of the daughters was wearing. Kathleen was aware that Alison had called the police to report defendant had been physically abusive to Alison. Defendant also had broken into Kathleen’s home, stolen documents, and used her credit cards and checks to purchase items. Another time, defendant became angry with Alison and kicked the door of the car Alison was driving, which was Kathleen’s car.
On May 21, 2003, in an effort to arrest defendant, Detective Michael Easter was conducting surveillance of Kathleen’s residence when he saw Alison exit and drive off in a Ford Escort. Easter followed Alison to a corner where she picked up defendant. Easter activated his lights and siren and blocked the Escort from leaving. Defendant fled but was apprehended by Easter. When caught, defendant attempted to hide a methamphetamine pipe in some bushes.
Alison testified that she and defendant had an “on and off” relationship and that she had never wanted the restraining order. She stated that on May 16, 2003, defendant telephoned and Alison answered. Only the speaker phone worked and as Alison spoke with defendant, Kathleen heard his voice on the line. Kathleen told defendant she was going to call the police because he was violating the restraining order. Although Alison heard Kathleen and defendant swearing, defendant never threatened Kathleen. Defendant hung up and Kathleen called the district attorney’s office, and about an hour later she called the police.
DISCUSSION
I
Defendant contends that, as to counts one and two, the trial court committed reversible error under California statutory law and the federal Constitution by admitting, over his objection, Kathleen’s testimony relating the uncharged crimes committed by defendant. The admission was error, defendant claims, because the evidence was irrelevant, and, if not irrelevant, it should have been excluded because its prejudicial nature substantially outweighed its probative value. We reject the claims.
Count one charged a violation of section 136.1, subdivision (c)(1). Section 136.1, subdivisions (a) and (c), provides, in pertinent part: “(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense . . . [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law . . . [¶] (c) Every person doing any of the acts described in subdivision (a) . . . knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony . . . [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim . . . .”
Although defendant claims the admission of the uncharged offenses requires reversal of both counts one and two, his analysis addresses only count two.
A
Defendant argues the uncharged crimes evidence was irrelevant to proving he intended his threat to Kathleen be taken seriously, or that Kathleen’s fear from the threat was reasonable, or that he had a motive to make the threat. Defendant is wrong.
“Relevant evidence” is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Section 422 requires proof the defendant had “the specific intent that the statement . . . is to be taken as a threat” and that “the person [threatened] reasonably be in sustained fear for his or her own safety.” Motive simply shows that defendant had a reason to make the threat.
Defendant argues the other crimes evidence was irrelevant to establishing his specific intent, the reasonableness of Kathleen’s fear, and his having a motive to make the threat because his acts of assault with a knife, verbal and physical abuse, stalking, and kicking in the car door were all committed against persons other than Kathleen. The point is not well taken.
Since the jury could reasonably conclude that because defendant knew Kathleen was aware of his commission of the other crimes, she also knew of the violence he was capable of doing. Therefore, knowing of defendant’s violent nature, Kathleen would take his threat to kill her seriously, her fear of defendant would be reasonable, and she would be frightened enough not to report him for being in violation of the restraining order. Thus, the evidence was highly relevant on all of the above challenged points.
In support of his claim that the other crimes evidence was not “germane to the issue of the reasonableness of victim Kathleen Gainer’s fear,” defendant cites People v. Garrett (1994) 30 Cal.App.4th 962. We can but wonder why the citation.
Garrett concluded the defendant’s wife’s knowledge that he had previously killed a man and the wife being a past victim of the defendant’s violence were circumstances relevant to establishing that his threat that he was coming to put a bullet in her head reasonably placed her in fear. (People. v. Garrett, supra, 30 Cal.App.4th at pp. 966-967.) Defendant then distinguishes Garrett by noting that in his case there is no evidence he ever killed anyone or that Kathleen was a victim of his violence. Since Garrett does not purport to set a minimum factual setting for establishing proof of the reasonableness of a victim’s fear for purposes of section 422, the fact that Garrett’s circumstances are more egregious than those in defendant’s case is utterly irrelevant.
B
Defendant contends “the admission of the other crimes evidence constituted federal constitutional error because it lacked any probity.” However, since we have concluded the other crimes evidence was indeed probative, lack of probity is not an available basis for a violation of the federal Constitution.
C
Defendant contends even if the other crimes evidence had “some quantum” of relevance, it should have been excluded under Evidence Code section 352 because its probative value was substantially outweighed by its potential for unfair prejudice. We disagree.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . (b) create substantial danger of undue prejudice . . . .” “We review for abuse of discretion a trial court’s ruling on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Harrison (2005) 35 Cal.4th 208, 230.)
Defendant argues the court abused its discretion in admitting the evidence of his uncharged crimes because its probative value was weak and the likelihood the jury would use it as propensity evidence was strong. No abuse of discretion has been shown.
For reasons noted above, the admission of the uncharged crimes evidence was, instead of weak, highly relevant to prove the issues of Kathleen’s state of sustained fear, defendant’s intent that Kathleen take his threat seriously, and defendant’s motive for making the threat. Additionally, the court instructed the jury that the evidence was admissible only on these issues and that they could not use the evidence to show defendant’s “bad character” or “disposition to commit crimes.” Presumably, the jury followed the court’s instructions (People v. Delgado (1993) 5 Cal.4th 312, 331), and defendant has not shown otherwise.
D
Defendant contends that for reasons he has previously demonstrated, “the trial court’s admission of the other crimes evidence . . . constituted federal constitutional error.” This is simply a rehash of defendant’s previous argument, which we have rejected.
E
Defendant contends he was prejudiced by the court’s giving conflicting instructions to the jury regarding the uncharged crimes evidence. We agree there was error, but conclude that the error could not conceivably have operated to defendant’s prejudice.
At the time Kathleen testified to the uncharged offenses, the court instructed the jury that the evidence was being offered for the limited purpose of showing her state of mind. However, during its closing instructions to the jury the court stated that the other crimes evidence could be considered only to prove “[t]he existence of the intent which is a necessary element of the crime charged” and to show “[a] motive for the commission of the crime charged.” Obviously the instructions are conflicting.
However, the case turned on whom the jury found more credible -- Kathleen or Alison Gainer. Under either version of the limiting instructions the jury was precluded from using the uncharged crimes evidence other than to show either Kathleen’s state of mind or both defendant’s intent and motive. Thus the jury would not have used that evidence to determine credibility. However, by their verdict the jury obviously found Kathleen, and not Alison, to be the more credible witness.
Prior to Kathleen’s testimony regarding the uncharged crimes, she testified that she had a “no contact” restraining order protecting “Alison, myself and Vanessa, my six-year[-]old granddaughter” from defendant; that when she took the phone from Alison, she told defendant that he was in violation of the restraining order and that she would report him; that in a “very angry” tone, defendant called her a “fucking bitch” and stated, “I will kill you, you fucking bitch”; and that she testified that she was particularly afraid when he said it and that she had remained afraid until he was taken into custody. Consequently, since the jury believed Kathleen, it did not matter which version of the instructions the jury applied because Kathleen’s testimony in and of itself amply established the necessary elements of the offenses.
II
As to the uncharged offenses, the court instructed per CALJIC Nos. 2.50 and 2.50.1. CALJIC No. 2.50 provided: “Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] The existence of the intent which is a necessary element of the crime charged; [¶] A motive for the commission of the crime charged[.] [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose.”
CALJIC No. 2.50.1 provided: “Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a crime other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crimes. [¶] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.”
However, the trial court did not give CALJIC No. 2.50.2, defining preponderance of the evidence. This omission, defendant contends, requires reversal of counts one and two because it constituted a violation of his federal and state due process rights because it left the jury “with no guidance or tools whatsoever to enable them to appropriately apply the applicable burden of proof to the other crimes evidence.” No reversal is required.
CALJIC No. 2.50.2 provides: “‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. [¶] You should consider all of the evidence bearing upon every issue regardless of who produced it.”
Neither our research nor that of defendant and the People has disclosed any authority regarding whether the trial court’s failure to define “preponderance of the evidence” is federal due process error. However, there is United States Supreme Court authority that the failure to define the more exacting standard of “reasonable doubt” does not “as a matter of course” violate federal due process standards. (See Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590] [“The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course”].) If the failure to define “reasonable doubt,” a standard which “defies easy explication” (ibid.) is not federal constitutional error, a fortiori, the failure to define “preponderance of the evidence,” which is easily explained, does not rise to the level of federal constitutional error.
There is no common dictionary definition of “reasonable doubt,” however “preponderance” does have common dictionary meaning, which is broader than, but includes, the legal definition. (See Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 324-326.) Thus “preponderance” is easily explained legally simply by eliminating the overbreadth of the common definition.
As for California state law, “preponderance,” as used in “preponderance of the evidence,” is a “legal term of art.” (Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d at p. 324.) Since “[t]he trial court [] has a sua sponte duty to define for the jury any term having a technical meaning peculiar to the law” (People v. Elam (2001) 91 Cal.App.4th 298, 306), the court’s failure to define “preponderance of the evidence” was error under state law.
The harmlessness of an instructional error which misdescribes or may have misled the jury, but is not of federal constitutional dimension, is measured by whether there is a reasonable likelihood that in the absence of the error, the defendant would have received a more beneficial result. (People v. Flood (1998) 18 Cal.4th 470, 487-489; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Here, the instructional omission must be found to be harmless. The jury was instructed that before the other crimes evidence could be used for any purpose, the People bore the burden of establishing by a preponderance of the evidence that defendant had in fact committed the uncharged offenses, and that they were to decide an issue of fact not by the number of witnesses who testified, but rather by the convincing force of the evidence presented.
Thus, even though the jury was not given the definition of “preponderance of the evidence,” they knew they were to decide all issues of fact, which of course included the truth of the other crimes offenses, by the convincing force of the evidence presented. Since only two witnesses testified regarding the other crimes evidence -- Kathleen and Alison Gainer -- the jury was in effect evaluating the other crimes evidence under the preponderance of the evidence standard, i.e., determining which witnesses’ testimony was more convincing. Hence, the error was harmless.
III
Defendant contends the cumulative effect of the above urged errors requires reversal. However, we have concluded there were only two errors -- conflicting limiting instructions regarding the application of the other crimes evidence (section I(E) ante) and failure to define preponderance of the evidence in determining whether the other crimes evidence had been proven (section II ante). The conflict in the limiting instructions was harmless because under either version of those instructions the jury was expressly precluded from using the evidence of the uncharged offenses to determine witness credibility, which was the major issue in the case, and the jury, by its verdict, obviously found Kathleen’s testimony more credible than Alison’s. The court’s failure to define preponderance of the evidence was harmless because under other instructions given the jury, in deciding whether the other crimes evidence had been proven, would had to have applied what was the equivalent of the preponderance standard, namely, by deciding that issue by the convincing force of the evidence presented, which was Kathleen’s versus Alison’s testimony. Consequently, even when combined, the errors had no bearing on the verdicts.
IV
Defendant contends the court erred in imposing certain fines and fees. The contention is based upon the following events:
On January 16, 2003, in case Nos. 62-027429 and 62-031052, the trial court sentenced defendant to state prison for seven years eight months, but suspended execution of the sentence and placed defendant on probation. At the same time, the court also imposed a single restitution fine of $200 (§ 1202.4).
Following defendant’s convictions in the instant case (case No. 62-035982), the court found him in violation of probation in the above cases as well as several other cases for which defendant was also on probation and which were eventually dismissed.
In the instant case, defendant was sentenced to state prison for 11 years, ordered to pay a $20 court security fee (§ 1465.8), and to pay $1,600 in fines in accordance with sections 1202.4 and 1202.45.
In case Nos. 62-027429 and 62-031052, the court imposed the previously suspended seven year eight month sentence, ordered that sentence to run concurrently with the sentence imposed in the instant case, imposed a $20 court security fee (§ 1465.8) in each case, increased the previously imposed $200 restitution fine (§ 1202.4) to $500, and imposed a conditional parole revocation fine (§ 1202.45) of $500, but stayed this fine pending successful completion of parole.
A
Defendant contends the trial court was without jurisdiction to increase the restitution and parole revocation fines beyond the original $200 in the probationary cases. The People agree the fines must be reduced to the original amount, but argue because there were two probationary cases the fines should be applied in each case. We accept the People’s concession regarding the reduction of the fines to $200 (see People v. Arata (2004) 118 Cal.App.4th 195, 201-203), however we disagree additional fines must be imposed because the cases are separate.
When defendant was sentenced on the probationary cases, only a single restitution fine (§ 1202.4) was imposed. However, “[i]n cases in which the court imposes a restitution fine, imposition of a parole revocation fine is also mandatory.” (People v. Tillman (2000) 22 Cal.4th 300, 302.)
Whether the cases are separate is now immaterial. The time for the People to have complained of this error, if it was error, was at the sentencing hearing conducted January 16, 2003, when the single $200 restitution fine was initially imposed. Contrary to the People’s claim that “[b]y its terms, section 1202.4, subdivision (b), mandates the imposition of one restitution fine in each criminal case,” the fine is not mandated, according to the express terms of section 1202.4, if the court “‘finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.’” (People v. Tillman, supra, 22 Cal.4th at p. 302, quoting § 1202.4, subd. (b).) Where the People do not object to the trial court’s failure to state on the record its reasons for not imposing the restitution fine, the issue is forfeited for purposes of appeal. (People v. Tillman, supra, at p. 303.) Consequently, we shall order the fines (§§ 1202.4, 1202.45) reduced to $200 each.
B
Defendant contends the trial court erred when it imposed the $20 court security fee in case No. 62-031052. The People concede the point as to case No. 62-031052, but argue the court should have imposed a $20 security fee for each felony conviction in the instant case. We accept the People’s concession as to case No. 62-031052, and we agree with the People that the court was required to impose $20 per conviction in the instant case. We shall modify the judgment accordingly.
Section 1465.8 was enacted August 2, 2003, and became effective August 17, 2003. (Stats. 2003, ch. 159, § 25.) In pertinent part, section 1465.8 provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .”
In the instant case, defendant was charged with six criminal offenses which were committed in May 2003. He was convicted of each charge on June 18, 2004. Defendant claims that because he committed all offenses before the effective date of section 1465.8, the imposition of the $20 court security fee was an improper retroactive application of section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.”
Section 3 “embodies the general rule that when there is nothing to indicate the contrary it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. ‘That rule of construct, however, is not a straitjacket. . . .’” (In re Chavez (2004) 114 Cal.App.4th 989, 993.)
Two recent decisions have addressed the application of retroactivity principles to court security fees and are now pending in our state Supreme Court. (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415 [holding the fee cannot be imposed retroactively because there was no clear indication that the Legislature intended the statute to be applied retroactively]; People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508 [holding the fee may be imposed upon a defendant whose crime occurred before the effective date of the statute because the history, purpose and impact of the law reveals the Legislature intended section 1465.8 to apply retroactively].)
We agree with the reasoning in Alford that section 1465.8 may be applied retroactively: the enactment of section 1465.8 as part of an urgency measure to implement the Budget Act of 2003 indicates a legislative intent to implement the statute immediately; retroactive application facilitates the stated objective of the statute, which is to ensure and maintain adequate funding for court security; the imposition of the fee does not interfere with a defendant’s antecedent rights; a defendant does not have a vested interest in avoiding a minimal contribution to court security; and a defendant does not incur additional punishment from imposition of the fee. Consequently, we reject defendant’s claim that section 1465.8 was not meant to be applied retroactively.
Where a trial court fails to impose a statutorily mandated fine or fee an unauthorized sentence results which an appellate court is empowered to correct. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.) Thus, to the extent the court failed in the instant case to abide by section 1465.8’s statutorily mandated $20 fee for “every conviction of a criminal offense,” the sentence was unauthorized. Accordingly, we shall impose $20 for defendant’s other five convictions.
Although not raised by either party, the abstract of judgment fails to show that defendant received a five-year enhancement for a prior serious felony conviction (§ 667, subd. (a). We shall order the abstract of judgment corrected to reflect this enhancement.
DISPOSITION
The $20 court security fee imposed in case No. 62-031052 is stricken. In case No. 62-035982, a $20 court security fee is imposed for each of defendant’s five other convictions, for a total court security fee of $120. As to case Nos. 62-027429 and 62-031052, the $500 fines imposed pursuant to sections 1202.4 and 1202.45 are reduced to $200 each, and the superior court is directed to designate which of the two cases these fines are to be applied. The matter is remanded to the superior court with directions to prepare an amended abstract of judgment reflecting these changes as well as showing defendant’s five-year enhancement for his prior serious felony conviction. The court is to forward a copy of the amended abstract of judgment to the Director of the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.
Count two charged a violation of section 422 which provides, in pertinent part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”