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People v. Ellison

California Court of Appeals, Fourth District, Second Division
Feb 1, 2011
No. E049572 (Cal. Ct. App. Feb. 1, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. INF054417 Richard A. Erwood, Judge.

Janice R. Mazur, 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, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ P.J.

Defendant and appellant Keith Wayne Ellison is serving a 17-year prison sentence after a jury convicted him of: 1) discharging a firearm into an inhabited dwelling (Pen. Code, § 246); 2) being a felon in possession of a firearm (§ 12021, subd. (a)); and 3) tampering with a vehicle (Veh. Code, § 10852). The jury and trial court found true several additional allegations. In this appeal, defendant argues the trial court erred when it allowed the jury to hear evidence of his prior act of domestic violence to show propensity under Evidence Code section 1109 because none of the charged offenses are offenses of “domestic violence.” As discussed below, we reject this assertion, but direct that the abstract of judgment be amended to reflect the correct number of presentence custody credits.

All section references are to the Penal Code unless otherwise indicated.

Facts and Procedure

On February 26, 2006, Officer Fields of the Cathedral City Police responded to a call of shots being fired at a residence. At the residence Fields spoke with a Ms. Bearman. Bearman told Fields that defendant had hit her in the face the previous day during an argument. Defendant and Bearman had a telephone discussion on the morning of February 26, during which Bearman stated she might tell defendant’s parents about the altercation. Bearman told Fields that this enraged defendant.

Bearman told Fields that she and her roommate Doyle Tester heard the doorbell ring that morning while they were relaxing in the back bedroom of the residence. Tester got up to answer the door and saw defendant through the peephole. As the two walked down the hallway toward the front of the house, Bearman heard what sounded like five or six gunshots coming from outside the residence.

Fields also testified that Tester told him that he had told Bearman that it was defendant at the front door. Fields found five bullet holes in the garage door. Inside the garage, Fields found an automobile, belonging to Tester, with one or two bullet holes and two dents where it appeared the bullets had ricocheted off the car without piercing the metal. Bearman’s automobile was parked outside the residence and one of its windows had been shattered by a bullet.

At trial, Bearman testified that she and defendant had been dating on and off for about a year and a half. She testified that she and defendant had had a disagreement the day before the shooting, but did not recall that the disagreement became physical or that defendant had threatened her. She also testified that, when she spoke with defendant on the phone the morning of the shooting, she did not tell him she would tell his parents about their disagreement the previous day. Bearman testified that she did not hear any shots fired, and was unsure whether Tester told her who was at the door, although she later testified that she must have been telling the truth when she told the 911 operator that Tester had told her defendant was at the front door.

Also at trial, the prosecution had Bearman review a transcript of her call to 911. Although she had told the 911 operator that defendant had hit her in the face the day before the shooting incident, and that she no longer wanted contact with him, on the witness stand she did not recall that defendant hit her at all. Bearman reluctantly admitted that she told the 911 operator that defendant had told her on the previous day after he had hit her: “You call the police and I’ll take care of you when I get out.”

Bearman testified that she had applied for a restraining order against defendant the day after the shooting because the police told her “they wouldn’t do anything unless” she did. Bearman admitted that she had personally written in the restraining order application that at the end of the February 25 altercation, defendant had run his finger across his throat in a threatening gesture to her, but stated that she was not sure whether she had taken it as a threatening gesture.

Bearman’s neighbor from across the street testified that he was in his home on February 26, 2006, when he heard five or six gunshots. He looked out his window and saw a man leaving Bearman’s driveway holding something in his hand that looked like a revolver. The man got into a white Ford Explorer and left. The neighbor was not able to identify the defendant as the man he saw, either in a photo lineup or at trial.

Police officer Mackie interviewed defendant the day of the shooting. Defendant told Mackie that he had been to a shooting range that day, and that his hands would test positive for gunpowder. Defendant stated that he had been driving his father’s tan Ford Explorer that day.

The People filed an initial complaint on May 25, 2006. The People filed an amended information on June 10, 2009, charging defendant with discharging a firearm into an inhabited dwelling, being a felon in possession of a firearm, and tampering with a vehicle. As to the discharging a firearm charge, the people alleged that defendant had personally used a firearm (§§ 667, 1192.7, subd. (c)(8)) and had personally used a deadly and dangerous weapon (§§ 667, 1192.7, subd. (c)(23)). The People also alleged that defendant had a prior conviction under the Three Strikes law (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and three prison priors under section 667.5.

Defendant was tried before a jury June 18-23, 2009. On June 23, the jury found defendant guilty on all counts and returned true findings on the two personal use enhancements for discharging a firearm. On that date the trial court found all three prior conviction allegations true.

On September 2, 2009, the trial court sentenced defendant to 17 years in prison as follows: the upper term of seven years for discharging a firearm, doubled to 14 years for the strike prior; eight months for being a felon in possession of a firearm, stayed pursuant to section 654; plus 30 concurrent days for tampering with a vehicle; plus one year for each of the three prison priors. The trial court awarded defendant 480 days of actual presentence time plus 72 days pursuant to section 2933.1, for a total of 552 days of presentence credits. This appeal followed.

Discussion

1. Propensity Evidence

Defendant first argues the trial court erred when it allowed the prosecution to introduce evidence of the uncharged act of domestic violence that he allegedly committed against Bearman the day before the shooting and instructed the jury that this evidence could be used to establish defendant’s propensity to commit domestic violence and the charged shooting. Specifically, defendant contends the charged shooting did not involve domestic violence as defined by statute, and so does not fall within the exception set forth in Evidence Code section 1109 allowing propensity evidence in cases of domestic violence.

“A trial court’s ruling to admit or exclude evidence... is reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation].” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)

Evidence Code section 1101 provides, in relevant part: “(a) Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”

Evidence Code section 1109 states, in relevant part: “[I]n 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.” (Evid. Code, § 1109, subd. (a).) “Section 1109 thus supplants the usual rule of evidence that evidence of past conduct is not admissible to prove a defendant’s conduct on a specified occasion. [Citation.]” (People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 [Fourth Dist., Div. Two].)

Defendant argues none of the crimes charged-discharging a firearm into an inhabited dwelling, being a felon in possession of a firearm, and tampering with a vehicle-is an act of domestic violence, and thus the trial court erred when it admitted evidence that he committed domestic violence against Bearman the day prior to the shooting. We disagree.

Evidence Code section 1109, subdivision (d)(3) defines “domestic violence” as having the meanings set forth in Penal Code section 13700, and Family Code section 6211. Penal Code section 13700, subdivision (b) defines “domestic violence” as “abuse committed against... [a] person with whom the suspect has had a... dating... relationship.” More relevant, subdivision (a) defines “abuse” as “placing another person in reasonable apprehension of imminent serious bodily injury....” Here, Bearman told the responding police officer Fields that she heard five or six gunshots after Tester told her defendant was at the front door. This would certainly be enough to place Bearman in reasonable apprehension of imminent serious bodily injury. Although Bearman testified at trial that she did not hear any gunshots, Bearman’s statements to officer Fields and Tester’s testimony that he heard the gunshots as he and Bearman walked towards the front of the house are sufficient evidence from which the trial court could conclude that defendant placed Bearman in reasonable apprehension of imminent serious bodily injury.

In addition, defendant committed domestic violence when he shot out Bearman’s car window and fired shots through her garage door. Family Code 6211 defines “domestic violence” as “abuse perpetrated against... (c) A person with whom the respondent is having or has had a dating... relationship.” Further, Family Code section 6203, subdivision (d) defines “abuse” as “behavior that has been or could be enjoined pursuant to Section 6320, ” which includes “destroying personal property.” (Fam. Code, § 6320, subd. (a).) Thus, because defendant was charged in this matter with tampering with a vehicle and shooting at Bearman’s garage door, he is charged with a crime of domestic violence under Family Code section 6211, and so the previous incident of domestic violence was admissible under Evidence Code section 1109.

To conclude, the trial court did not abuse its discretion when it admitted evidence that defendant had hit Bearman the day before the shooting, because the crimes for which defendant was standing trial included acts of domestic violence, namely shooting at Bearman’s car and garage door, and causing her reasonable apprehension of imminent serious bodily injury.

This conclusion is consistent with that of this court in People v. Dallas (2008) 165 Cal.App.4th 940 [Fourth Dist., Div. 2] [Evidence Code section 1109 applies when the charged offense is felony infliction of an injury on a child (§ 273d, subd. (a) when the defendant was a “cohabitant” with the child within the definition found in Family Code sections 6209 and 6211] and with the holding in People v. James (2010) 191 Cal.App.4th 478 [Evidence Code section 1109 applies to the charged burglary offense where defendant broke down the door of a victim with whom he had a dating relationship and repeatedly made threatening remarks toward the victim].

2. Presentence Custody Credits

Defendant argues, and the People and this court agree, that the trial court erred when it limited his presentence custody credits to 15 percent under section 2933.1. This is because that section applies only to persons convicted of a violent felony listed in section 667.5, subdivision (c). None of defendant’s convictions are those listed in section 667.5, subdivision (c). Therefore, defendant is entitled to the 480 days he actually spent in custody, plus 240 days of good time/work credits under section 4019, for a total of 720 days of presentence custody credits.

Disposition

The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect 480 days in actual presentence custody credits, plus 240 days of good time/work credits under section 4019, for a total of 720 days of presentence custody credits.

We concur: RICHLI J., CODRINGTON J.


Summaries of

People v. Ellison

California Court of Appeals, Fourth District, Second Division
Feb 1, 2011
No. E049572 (Cal. Ct. App. Feb. 1, 2011)
Case details for

People v. Ellison

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KEITH WAYNE ELLISON, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 1, 2011

Citations

No. E049572 (Cal. Ct. App. Feb. 1, 2011)