Opinion
B296618
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MELVIN ELLIS, Defendant and Appellant.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General and Michael C. Keller and Wyatt E. Bloomfield, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA146071) APPEAL from an order of the Superior Court of Los Angeles County, Michael Abzug, Judge. Affirmed and remanded with directions. Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General and Michael C. Keller and Wyatt E. Bloomfield, Deputy Attorneys General for Plaintiff and Respondent.
____________________
INTRODUCTION
Melvin Ellis stabbed his girlfriend three times with a knife. Several months later, he threatened to kill her. A jury convicted him of attempted murder, making a criminal threat, and related domestic violence crimes. Ellis appeals, arguing the trial court committed evidentiary error, the prosecutor committed misconduct, and substantial evidence did not support the conviction for making a criminal threat. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ellis Tries To Kill His Girlfriend
Ellis and his girlfriend, Shannon J., lived with Pernisia Jackson, an elderly woman for whom Shannon served as a caregiver, in a house in Compton that was across the street from the home of Ellis's parents. Ellis also lived at times at his parents' house. He did not have a key to Jackson's house and relied on Shannon or Jackson to let him in.
Shannon met Ellis in a rehabilitation program, and they began dating in September 2015. Ellis characterized their relationship as "up and down." He said, "Like any other relationship, it has its ups and downs. We argue. We don't always be lovey-dovey and happy."
One morning in February 2018 Shannon was in the house, and Ellis was in the backyard working on bicycles. Ellis left with a friend to go to the liquor store. They bought vodka and started drinking around noon, and Ellis continued drinking "throughout the day." Ellis and his friend returned to the liquor store at least twice that day to buy more vodka, and Ellis smoked a stick of phencyclidine (PCP).
In the afternoon, after Shannon returned from a job cleaning a house, she and Ellis began to argue. Ellis was upset about the cleaning job. They also argued about Ellis's drinking. Shannon let Ellis into the house, and he followed her into her bedroom.
Shannon told Ellis that she did not want to be in a relationship with him anymore and that she wanted him to leave her alone. After she repeated her statements, Ellis became angry and stabbed Shannon in the neck with a steak knife from Jackson's kitchen. Shannon reached for a towel on the bed and tried to stop the bleeding by putting pressure on the wound. There was "blood gushing out like a waterfall." Ellis stabbed Shannon two more times, once on the left side of her abdomen and once in her left thigh. Ellis dropped the knife and ran out the back door.
Shannon walked out of the bedroom, and Jackson called the 911 emergency operator. In the background of the recorded call, which the prosecutor played for the jury, Shannon is screaming. Dizzy from the loss of blood, she eventually sat down until the paramedics arrived and began "trauma control." When sheriff's deputies arrived, Shannon told them what happened. She said that she had been in an argument with Ellis, that Ellis was drunk, that she repeatedly asked him to leave and he refused, and that he pulled out a knife and stabbed her three times. Shannon was "very scared and very injured," and "there was a lot of blood" in the bedroom. Shannon gave the deputies a description of Ellis.
Shannon was taken to the hospital and released that evening. She later met with detectives and identified Ellis as the person who stabbed her.
Ellis testified he had no memory of the attack. He said that when he learned what had happened, he felt "terrible" because he "wouldn't do nothing like that."
B. Ellis Threatens To Kill His Girlfriend
After the stabbing incident, while Ellis "was on the run," Shannon communicated with him by telephone, but they did not see each other for while. Shannon forgave Ellis, and eventually they continued their relationship and resumed living together in Jackson's house. Shannon testified that she and Ellis still cared for each other and that, while their relationship was "a little strained," the "love was still there."
One day in May 2018 Shannon returned to her room in Jackson's home and found her television "sitting in the window," between the security bars and the window. The window was cracked, and the television's power cord was cut. Two cell phones were also missing. Jackson said Ellis had been there. Ellis testified at trial he cut the television cord because he thought Shannon was cheating on him or had betrayed him.
Shannon went looking for Ellis to ask him why he damaged her television. When she found him riding a bike in the street in front of Jackson's house, he said to her, "I'm gonna kill you, bitch." Shannon called the 911 emergency operator. Shannon and Ellis continued to argue about the television until Ellis rode away on his bicycle.
Sheriff's deputies responded to the scene, and Shannon told them about the television and the threat. She "seemed very upset" and said Ellis "had entered the home when she was gone." According to one of the deputies, Shannon said that the threat "made her very emotional" and that "she felt that he could carry it through because he had stabbed her previously." She also told the deputies that her "television had been ripped from the wall," that "the cord was cut," and that "two cell phones were missing." Shannon described Ellis and identified him in a field show-up. When deputies later arrested Ellis near Jackson's house, they found Shannon's two cell phones in his pockets.
At the time of trial, Ellis and Shannon were still in a relationship. Shannon testified she loved him and had forgiven him, including for stabbing and threatening to kill her. She stated that Ellis had drug and anger issues and that drinking was a "trigger for him, because it brings up memories of [his] past."
C. The Jury Convicts Ellis of Multiple Domestic Violence Crimes, and the Trial Court Sentences Him
In connection with the February 2018 assault, the People charged Ellis with attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664), inflicting corporal injury on a cohabitant or someone with whom he had a dating relationship while having a prior conviction for the same offense within the previous seven years (§ 273.5, subds. (a), (b), (f)(1)), and violating a domestic violence protective order (§ 273.6, subd. (a)). The People alleged Ellis personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b). In connection with the May 2018 incidents, the People charged Ellis with making a criminal threat (§ 422) and first degree residential burglary (§ 459). The People also alleged Ellis had been convicted of a felony that was a serious felony within the meaning of section 667, subdivision (a)(1), and a serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12).
Undesignated statutory references are to the Penal Code.
At trial the prosecutor introduced evidence of, among other things, a 2016 incident of domestic violence between Ellis and Shannon outside the home of Ellis's parents. On that occasion Ellis had accused Shannon of stealing his money, grabbed her by the shirt collar, and caused her to fall to the ground. When sheriff's deputies arrived, Shannon was crying, "disheveled," and covered with grass. Her hair and clothes were "a mess," and she "was trying to gather herself." She told the deputies that she and Ellis had an "argument over an accusation" about money and that he physically assaulted her. She said Ellis "got mad and started to punch her" multiple times in the face, head, and chest. She told the deputies Ellis had continued to hit her until they arrived on the scene. She also told them there had been previous instances of domestic violence. When the deputies found Ellis, he admitted he hit Shannon because he was angry and upset. He pleaded no contest to inflicting corporal injury on someone with whom he had a dating relationship.
The jury in this case found Ellis guilty of attempted premeditated murder, inflicting corporal injury on a cohabitant or someone with whom he had a dating relationship while having a prior conviction for the same offense within the previous seven years, and violating a domestic violence protective order. The jury found true the allegations Ellis personally used a deadly or dangerous weapon. The jury found Ellis guilty of making a criminal threat, but not guilty of burglary. In a bifurcated proceeding, the jury found true the prior conviction allegation.
The trial court sentenced Ellis to life imprisonment with the possibility of parole for his attempted murder conviction, doubled for the prior serious or violent felony conviction, plus one year for the deadly or dangerous weapon enhancement, and five years for the prior serious felony conviction. The court imposed concurrent terms for the other convictions. The court also stated: "All fines and fees except those mandatory are permanently stayed because of the length of the sentence. Defendant also conducted himself like a gentleman throughout the entire proceedings."
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting a Jailhouse Telephone Conversation Between Ellis and Shannon
1. Relevant Proceedings
The People moved to introduce a recording of a telephone call between Ellis and Shannon while Ellis was in custody awaiting trial. In this relatively short call, Ellis and Shannon expressed their love for each other and how much they missed each other. Shannon stated, "I'm with you, baby, all the way." Ellis said, "I'm sorry. But you made me so jealous, Shannon, and . . . um, you know they gonna ask you—" Shannon interrupted and said, "We not gonna relive the past," "I'm with you till the end. I'm riding with you. I'm gonna wait for you because I want you," and "You're my life." Ellis said, "Man you made me so hot that day." When Shannon asked Ellis why he damaged her television, Ellis said, "No, because I knew I—look, I did not want to put my hands on you, Shannon." After Shannon repeatedly promised she would stay with him and wait for him, Shannon said, "I'm not gonna be in court on the 28th. I'm not gonna be there because she say don't come, don't show up." Ellis said, "No, don't, don't, don't."
Ellis sought to exclude this recording. His attorney argued the recording lacked foundation, was not relevant, and was inadmissible hearsay.
The trial court, observing the prosecutor was "only seeking to admit the first few minutes or so" of a 15-minute telephone call, stated Ellis was "not objecting under the rule of completeness, but . . . on a variety of grounds, hearsay and relevance." The court, stating it had "thoroughly reviewed the transcript" of the call, ruled the recording was "relevant on a number of grounds. First and foremost, . . . the transcript can be reasonably read as a possible admission by the defendant that he was responsible for the burglary, and so it's an admission against party interest. It's relevant and admissible for that reason." The court ruled the recording was also admissible because "it informs the jury about the relationship between the nominal victim and the defendant and provides . . . a possible explanation for the apparent inconsistency between what she told the police happened and what she told the jury here; that is, that she loves the defendant, she has continuing feelings of affection for him, and the jury may, but is not compelled to, find based on her testimony and based on the expressions of affection that are expressed in the call, that the reason there is an inconsistency is she is trying to protect the defendant." Finally, the court found "the transcript can be read, not necessarily, but could be read by the jury as an attempt by the defendant to dissuade a witness, which is also relevant."
2. The Trial Court Did Not Abuse Its Discretion
Ellis concedes that some of the call was admissible. In particular, Ellis does not dispute that his statements that Shannon made him jealous, that she made him "hot that day," and that he did not want to put his hands on her, as well as his apologies, were admissible. But Ellis argues that other portions of the call were not admissible and that the trial court abused its discretion in admitting the entire conversation because the hearsay exception for declarations against interest under Evidence Code section 1230 did not apply. Ellis argues that, because the "jail call contains only limited statements that potentially are directly against [his] interests," the "trial court should have either excluded the call in its entirety or only admitted those portions of the call that directly fell within the exception." Ellis also argues the recording "should have been excluded under [Evidence Code] section 352 as its probative value was significantly outweighed by its prejudicial effect."
To the extent any statements by Ellis were hearsay, they were admissible under Evidence Code section 1220 as admissions by a party opponent. (See People v. Armstrong (2019) 6 Cal.5th 735, 786, fn. 19 ["any otherwise relevant 'statement' of a party is admissible against him, regardless of whether the statement would meet the narrower definition of a confession or admission"]; People v. Davis (2005) 36 Cal.4th 510, 535 ["A defendant's own hearsay statements are admissible."].) As Ellis concedes, Evidence Code section 1220 "potentially could be grounds to admit [Ellis's] statements . . . ." True, the trial court referred to "admission against party interest," which, as Ellis suggests, is the hearsay exception for statements against penal interests under Evidence Code section 1230. A reasonable interpretation of the transcript, however, is that the court was referring to admissions by a party opponent under Evidence Code section 1220. In any event, we review the court's ruling, not the specific reason stated or the code section cited. (See People v. Brooks (2017) 3 Cal.5th 1, 39 ["'"we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm"'"]; People v. Chism (2014) 58 Cal.4th 1266, 1307, fn. 13 ["'"'a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason'"'"].)
Some of the statements were not hearsay. For example, the prosecution did not introduce Ellis's and Shannon's statements of love and fidelity to prove they were true, but to show Shannon's bias and to explain why she changed her version of important facts about the 2016 and May 2018 incidents.
As for Ellis's argument under Evidence Code section 352, counsel for Ellis did not object on that ground in the trial court. Therefore, he forfeited the argument. (See People v. Valdez (2012) 55 Cal.4th 82, 138 ["[i]nsofar as defendant argues the evidence was inadmissible under Evidence Code section 352 . . . defendant forfeited this argument by failing to object on this basis at trial"]; People v. Doolin (2009) 45 Cal.4th 390, 434 [defendant forfeited the argument the trial court abused its discretion under Evidence Code section 352 by failing to object on that ground at trial]; People v. Panah (2005) 35 Cal.4th 395, 492 ["[d]efendant's Evidence Code section 352 claim is forfeited by his failure to have made this objection"].)
The argument is also meritless. The probative value was significant, and the prejudice was virtually nonexistent. The recording contained statements that implicated Ellis in the burglary (i.e., he damaged the television to avoid putting his hands on her), provided a motive and explanation for the assault with the knife (Shannon made him feel "so hot that day" and he was jealous), tended to prove he was trying to influence Shannon's testimony (Ellis's statement to Shannon during the jailhouse telephone call, "don't, don't, don't" show up in court), and provided an explanation for Shannon's reluctance to implicate Ellis in the 2016 domestic violence and May 2018 criminal threat (she loved him and wanted him back). And Ellis does not identify any significant, let alone undue, prejudice. Ellis's statements in the call did tend to support the prosecution's case and damage his, but that is not the kind of prejudice that justifies exclusion under Evidence Code section 352. "'"In applying [Evidence Code] section 352, 'prejudicial' is not synonymous with 'damaging.'"' [Citation.] '"'[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.'"' [Citation.] The 'prejudice' which [Evidence Code] section 352 seeks to avoid is that which '"'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'"'" (People v. Cage (2015) 62 Cal.4th 256, 275.) The jailhouse telephone call tended to prove Ellis was guilty, but it did not tend to evoke any emotional bias against Ellis.
Shannon changed her story about the 2016 domestic violence incident, testifying Ellis did not hit her, and about the May 2018 criminal threat, testifying she was not afraid Ellis would kill her.
B. The Prosecutor Did Not Engage in Misconduct
Ellis argues the prosecutor committed misconduct in her closing and rebuttal arguments to the jury. He maintains four comments by the prosecutor were improper. The comments did not, individually or collectively, amount to prosecutorial misconduct.
1. Applicable Law
"'"'A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] In other words, the misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"'" (People v. Hoyt (2020) 8 Cal.5th 892, 943; see People v. Caro (2019) 7 Cal.5th 463, 510.) "'"A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."'" (People v. Young (2019) 7 Cal.5th 905, 932-933.)
A "prosecutor has 'wide latitude to comment on the evidence during closing argument.'" (People v. Hoyt, supra, 8 Cal.5th at p. 945.) A prosecutor's "argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence." (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) "'"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner."'" (People v. Woodruff (2018) 5 Cal.5th 697, 765.) An appellate court will "not '"'lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements."'" (People v. Bell (2019) 7 Cal.5th 70, 111; see People v. Spencer (2018) 5 Cal.5th 642, 684 [reviewing court will not "adopt the most damaging—and far-reaching—interpretation of the prosecutor's comments to find that he committed misconduct"].)
2. There Was No Prosecutorial Misconduct
a. The Niece Comment
In discussing the intent element of attempted murder, the prosecutor stated: "There's a thought process that goes to choosing a knife that happened to be a very dangerous thing that I even teach my three-year-old niece to never touch, because we know that, when you touch something, and if you use it in the wrong way, you're going to kill someone." The trial court overruled counsel for Ellis's objection to this statement. Ellis argues the prosecutor's "statement regarding her niece about the dangers of knives referenced matters outside the record, appealed to the passion and prejudice of the jurors, and offered a personal opinion as to the evidence."
Not really. Of course, the prosecutor's niece did not testify. But prosecutors "may draw upon common experience and knowledge" (People v. Brady (2010) 50 Cal.4th 547, 584), and "in closing argument attorneys may use illustrations drawn from common experience, history, or literature" (People v. Bramit (2009) 46 Cal.4th 1221, 1242; see People v. Stanley (2006) 39 Cal.4th 913, 951-952). The prosecutor here was making a proper argument that Ellis had the requisite intent to commit attempted murder because he went through the thought process of choosing a knife—rather than, the prosecutor suggested, a "pencil," a "piece of clothing," or "something that happens to be laying on the floor"—which is an object even a child would understand was very dangerous. Although the trial court cautioned the prosecutor that "going forward in other trials you're probably better served not to bring your family members into it" and that she could "make the point by generally talking about the obvious nature of knives," the prosecutor's anecdote about her niece was acceptable advocacy. (See People v. Harrison (2005) 35 Cal.4th 208, 248 ["'anecdotes . . . are commonly regarded as acceptable' in closing argument"].) And, as the trial court commented, "It was isolated. It was brief. And I don't think the defendant was prejudiced in any material way." (See People v. Bennett (2009) 45 Cal.4th 577, 618 ["no conceivable prejudice could have resulted from the brief remark"]; People v. Kipp (2001) 26 Cal.4th 1100, 1130 ["prosecutor's comment was brief, mild, and not repeated"].)
b. The Prior Domestic Violence Comment
In discussing the evidence of Ellis's prior act of domestic violence against Shannon in 2016, which the court admitted under Evidence Code section 1109, the prosecutor stated: "And it's important because his conduct shows you exactly the kind of person he is. In 2016, he beats her, leaves her on the sidewalk, and flees in that case too, only to then do it again on February 1st, 2018. Because he gets angry, and he gets frustrated, and he gets jealous. You heard his statement back in 2016. He said, 'I thought she took my money. I got angry.' And in this case he got angry that she didn't want to be in a relationship with him. And so what does he do? He tries to take her life." The trial court overruled counsel for Ellis's objection to this statement. Ellis argues the statement "made it appear, despite the jury instructions to the contrary, that the jury could conclude that [Ellis] was guilty of premeditated murder because of his prior actions."
Evidence Code section 1109 provides that, subject to Evidence Code section 352, "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 Evidence Code section 1101, which "generally prohibits admission of 'evidence of a person's character or a trait of his or her character . . . to prove his or her conduct on a specified occasion'" (People v. Case (2018) 5 Cal.5th 1, 38). There was evidence Ellis committed acts of domestic violence in 2016. In 2018 he was accused of multiple offenses involving domestic violence against the same victim: attempted murder, inflicting corporal injury on a cohabitant or someone with whom he had a dating relationship, violating a domestic violence protective order, and making a criminal threat. The prosecutor was entitled to argue the jury could consider evidence Ellis committed offenses involving domestic violence in 2016 in deciding whether he committed offenses involving domestic violence in 2018, including attempted murder. (See People v. Brown (2011) 192 Cal.App.4th 1222, 1235 [defendant was "'accused of an offense involving domestic violence' within the meaning of [Evidence Code] section 1109 when he was charged with . . . first degree murder," and "the court properly found that his prior acts of domestic violence were admissible as propensity evidence"]; see also People v. Megown (2018) 28 Cal.App.5th 157, 166 ["Being 'accused of an offense involving domestic violence' is broader than domestic violence which is defined as abuse committed against one of certain defined individuals."].)
Moreover, the prosecutor did not argue the jury could use the evidence Ellis committed domestic violence against Shannon in 2016 to find he premeditated the attempted murder of Shannon in February 2018. The prosecutor argued Ellis tried "to take her life." (Cf. People v. Disa (2016) 1 Cal.App.5th 654, 673-674 [although the trial court "properly determined the prior incident was admissible to show propensity to commit domestic violence under [Evidence Code] section 1109," the "facts of the prior incident were not admissible to show premeditation and deliberation in the current case," and the court abused its discretion under Evidence Code section 352 by admitting evidence that the prior act of domestic violence included lying in wait, because that evidence "was highly inflammatory and was not specifically relevant to the purpose for which the past incident of domestic violence was admitted, that is, to show a propensity to do violence to a partner or former partner"].) The prosecutor did not mention the prior domestic violence or Evidence Code section 1109 when discussing premeditation and deliberation. In fact, the trial court instructed the jurors they could consider the evidence of prior domestic violence only on the charge of inflicting corporal injury on a cohabitant or someone with whom Ellis had a dating relationship.
c. The Alternative Theories Comment
During her rebuttal argument, the prosecutor discussed the heat-of-passion form of the lesser included offense of attempted voluntary manslaughter, as well as the instruction on voluntary manslaughter, CALCRIM No. 570. The prosecutor stated: "And defense counsel may want you to say, hey, consider that he was drinking alcohol. But if you don't believe that, hey, maybe you believe CALCRIM [No.] 570. You can't just have things thrown to you and say, well, if we don't believe one thing, then we're going to believe the other. That's not how it works." The trial court overruled counsel for Ellis's objection to this statement. Ellis argues that, in making this comment, the prosecutor "specifically stated that it was against the law for the defense to present alternative defenses."
Considered "'[i]n the context of the whole argument and the instructions'" (People v. Centeno (2014) 60 Cal.4th 659, 667), there is no reasonable probability the jury understood the prosecutor's comments as suggesting Ellis could not present alternative theories of defense. The prosecutor was arguing that certain instructions the trial court gave might not be applicable, that counsel for Ellis had argued Ellis could be convicted of attempted voluntary manslaughter under CALCRIM No. 570, and that CALCRIM No. 570 would not be applicable if the jurors decided Ellis was guilty of murder. The prosecutor explained voluntary manslaughter required provocation that would cause a reasonable person to act from heat of passion, not intoxication, which the court had instructed the jurors they could consider only in deciding whether Ellis acted with premeditation and deliberation. The prosecutor, citing the court's instruction on attempted voluntary manslaughter, argued that, even if Ellis was angry when Shannon told him she wanted to end their relationship, a reasonable person would not have reacted by stabbing her with a knife. The prosecutor was not arguing that Ellis could not present alternative theories, but that intoxication was relevant to attempted murder, that heat of passion was relevant to attempted voluntary manslaughter, and that the evidence did not support either theory. "Thus understood, the comments were not misconduct." (People v. O'Malley (2016) 62 Cal.4th 944, 1011.)
d. The Protective Order Comment
The prosecutor also discussed during her rebuttal argument the burglary charge (of which the jury acquitted Ellis). In arguing Ellis intended to commit a felony when entering Shannon's room to damage her television, the prosecutor argued: "And by law, by law, he's not supposed to be there. There's a protective order that's in effect since 2016. He's not supposed to be at that home in the first place. So for him to now say, well, I was living there, I have a right of entry, is not accurate." Ellis argues this comment "was a misstatement of facts because the protective order was as to [Shannon], not a particular residence." That he may have "violated the protective order as to" Shannon, Ellis argues, "does not negate the fact that [he] was living at Jackson's residence."
As the People point out, however, it is a reasonable inference that individuals protected by a domestic violence protective order are often found where they live. Therefore, it was a "fair comment on the evidence" for the prosecutor to argue Ellis should not have been in Shannon's bedroom while subject to the protective order. (See People v. Bennett, supra, 45 Cal.4th at p. 614 [fair comment on the evidence is not misconduct]; People v. Stanley, supra, 39 Cal.4th at p. 960 [same].) In any event, because the jury acquitted Ellis of burglary, any misconduct could not have prejudiced him. (See People v. Ochoa (1998) 19 Cal.4th 353, 432 [any prosecutorial misconduct "resulted in no harm to defendant" because "the jurors acquitted him of attempting to murder" the victim].)
Because the trial court did not err in admitting the recording of Ellis's jailhouse conversation with Shannon or in overruling Ellis's objections to the prosecutor's arguments, there is no cumulative error to justify reversal. (See People v. Cordova (2015) 62 Cal.4th 104, 150 [no cumulative prejudice where "there was no error to accumulate"]; People v. Avila (2014) 59 Cal.4th 496, 520 [same].)
C. Substantial Evidence Supported Ellis's Conviction for Making a Criminal Threat
In order to prove the defendant guilty of making a criminal threat, "the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat '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,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . 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,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228; accord, People v. Malik (2017) 16 Cal.App.5th 587, 599.) Ellis argues substantial evidence did not support the jury's findings on element (3), that his May 2018 threat was "unequivocal, unconditional, immediate and specific," and element (4), that Shannon "actually was afraid."
As to element (3), Ellis argues that one of the deputies who responded to the scene was "not certain when the statement ['I'm gonna kill you, bitch'] was made because [Shannon] was talking very quickly and was 'upset.'" But even without the deputy's testimony there was substantial evidence Ellis threatened to kill Shannon. For example, Shannon testified Ellis said, "I'm gonna kill you." In addition, after the prosecutor refreshed the deputy's recollection with the police report and her preliminary hearing testimony, the deputy testified:
"Q: And again, [Shannon] told you that the defendant's words were, 'I'm gonna kill you, bitch,' correct?
"A: Yes.
"Q: Did you kind of inquire, ask her how those statements made her feel?
"A: Yes.
"Q: What did she tell you?
"A: She stated that it made her very emotional, and she felt that he could carry it through because he had stabbed her previously.
"Q: Okay. And did she tell you that she was actually frightened by those words?
"A: Yes, she was frightened by those words."
This testimony was also substantial evidence for element (4), which required the prosecution to prove Ellis's threats "'actually caused'" Shannon to be in "'"sustained fear for . . . her own safety."'" (People v. Ramos (2016) 5 Cal.App.5th 897, 910.) Although, as Ellis points out, Shannon testified that she "wasn't in . . . danger" even though she called the 911 emergency operator and that she was not scared of Ellis when he made the threat, she also testified she made the emergency call because of the threat. And the responding deputies observed that Shannon was upset, emotional, and feared for her safety because Ellis had recently tried to kill her. (See People v. Wilson (2010) 186 Cal.App.4th 789, 808 ["'victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear'"].)
D. Remand Is Appropriate To Allow the Trial Court To Clarify What Fines and Fees It Meant To Impose
As stated, the trial court in its oral pronouncement of judgment did not specify what fines, fees, or assessments it was imposing on Ellis. The court stated that it was imposing "all" of them, but that the "mandatory" ones were "permanently stayed." And as to the latter, the court did not clarify whether it was staying imposition of the fines and fees or imposing the fines and fees and staying execution. The minute order, however, indicates the court imposed a $400 restitution fine under section 1202.4, subdivision (b), a $400 parole revocation fine under section 1202.45 (stayed unless parole is revoked), a $160 court operations assessment under section 1465.8, and a $120 court facilities assessment under Government Code section 70373.
Ellis argues that the "trial court clearly intended not to impose any fines it had the discretion not to impose," that the court "should have stricken instead of stayed those fines," and that the court implicitly found Ellis did not have the ability to pay these fines and assessments. (See People v. Belloso (2019) 42 Cal.App.5th 647; People v. Castellano (2019) 33 Cal.App.5th 485; People v. Dueñas (2019) 30 Cal.App.5th 1157.) The People argue Ellis "was sentenced before the decision in Dueñas, and each of the fines and fees imposed was mandatory under the law at the time." The People take the position, however, that "should this Court find[ ] that the trial court's oral pronouncement conflicts with the abstract of judgment and minute order, this matter should be remanded for the trial court to clarify the particular fines and fees it intended to impose."
The People's suggestion is a sound one. The court's oral pronouncement conflicts with the minute order. Although the oral pronouncement controls (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Sanchez (2019) 38 Cal.App.5th 907, 918), it is unclear from the oral pronouncement what the court meant to impose. Therefore, remand is appropriate here for the trial court to clarify what fines, fees, and assessments it imposed and which ones it stayed, and why. Once the court makes that clarification, Ellis will be able to determine his ability to pay and whether to ask the court not to impose them because he lacks the ability to pay.
DISPOSITION
The judgment is affirmed, and the matter is remanded with directions to hold a new hearing on the fines, fees, and assessments.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.