Opinion
C088246
07-28-2021
THE PEOPLE, Plaintiff and Respondent, v. HENRY JAMES FLUKER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 18FE007083
BLEASE, ACTING P. J.
Defendant Henry James Fluker, Jr., assaulted his girlfriend Anja Doe with a tire iron and a steering wheel lock, injuring her. Anja, who is schizophrenic and suffers from delusions, had previously accused an ex-boyfriend of sexually assaulting her, but the assault was a delusion and never occurred.
Following a jury trial, defendant was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), corporal injury to a cohabitant (§ 273.5, subd. (a)), and simple assault (§ 240) along with enhancements for inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court sustained strike, serious felony, and prior prison term allegations (§§ 1170.12, 667, subd. (a), 667.5, subd. (b)), and sentenced defendant to 19 years in state prison.
Undesignated statutory references are to the Penal Code.
Defendant contends on appeal that: (1) the upper terms for the felony assault and its great bodily injury enhancement both violated the proscription against the dual use of facts; (2) the trial court erred in imposing two separate Government Code section 29550.2 fees and failed to make an ability to pay finding; (3) various fines and assessments must be stayed pending a determination of his ability to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); (4) admitting jail calls between the victim and defendant was an abuse of discretion which violated due process and his self-incrimination privilege; and (5) it was an abuse of discretion to allow expert testimony on intimate partner battering. In a supplemental brief, he contends the prison prior must be stricken pursuant to Senate Bill No. 136 (Senate Bill 136) and the matter must be remanded to allow the trial court to determine whether to exercise its discretion to strike the serious felony allegation pursuant to Senate Bill No. 1393 (Senate Bill 1393).
The dual use of facts contention is both forfeited and without merit. As Government Code section 29550.2 allows imposition of a single fee, we shall remand for the trial court to determine whether either or both of the fees were part of the administrative costs covered by this fee; defendant may contest his ability to pay this fee on remand. We decline to follow Dueñas, so the trial court does not need to inquire into defendant's ability to pay the fines and fees addressed by that decision. The constitutional claims regarding the jail cell calls are forfeited and without merit, and it was within the court's discretion to admit them. The expert testimony on battered victim syndrome was likewise within the court's discretion to admit in order to explain the victim's continuing relationship with the defendant. While Senate Bill 136 and Senate Bill 1393 apply to this case, the trial court stated it would not exercise its discretion to strike the serious felony allegation had Senate Bill 1393 been in effect. We shall strike the prison prior, remand for additional proceedings on the Government Code section 29550.2 fee, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
A. The Crime
Anja Doe was originally diagnosed with schizoaffective disorder with psychotic features, and later diagnosed with schizoaffective disorder, bipolar type. In January 2018, she was receiving housing assistance and mental health treatment from Transforming Lives, Cultivating Success (TLCS), a service provider for chronically homeless persons with mental health diagnoses. TLCS paid a portion of Anja's rent, conditioned on her abiding by various rules including a prohibition on guests staying with her for an extended time.
Defendant and Anja started dating in January 2018; he moved into her apartment but was not on the lease. In April 2018, Anja's TLCS coordinator Kayla Aanerud learned she was living with defendant and warned Anja that she would be kicked out of the housing program if she kept violating TLCS rules. Aanerud opined Anja was a caring and generous person who would at times put herself at risk of being taken advantage of by others.
Aanerud contacted Anja on April 4, 2018, to determine her safety and well-being; Anja replied that defendant had broken her phone for the second time in a week. She then tried to discuss the warning signs and patterns of domestic violence with Anja, who declined Aanerud's offer of a safety plan. Two days later, Anja told Aanerud that defendant had body-slammed her to the ground, she was pregnant, and she was going to live in a shelter. Anja said she called the police, who did not believe her because there were no marks on her body.
Aanerud told Anja to get defendant out of her home; Anja resisted because she wanted defendant to be her in-home supportive services caregiver. Anja said she loved defendant but did not want to be abused. Since she did not want to lose her voucher and get removed from the housing program, Anja was willing to have defendant move out.
Anja began moving defendant's belongings out of her apartment on April 9. She called 911 after defendant threatened to hurt her that evening. A few minutes later, defendant closed the front door, dragged Anja to the back room, and assaulted her. He grabbed a tire iron or crowbar and struck Anja on the forearm and leg. He next took a steering wheel lock (aka the club) and struck Anja in the head until the police arrived. As a result of the attack, she sustained a head laceration that required stitches, as well as a laceration and welt to her forearm and a laceration to her leg.
Defendant answered the door when the police arrived. Telling the officers Anja was in the shower, he did not immediately get her when the officers asked for her. Defendant claimed no one called the police, but the officers eventually entered the apartment and talked to Anja. Anja told the police she wanted defendant out because he attacked her with a tire iron. Defendant, who was very relaxed when he answered the door, became nervous and verbally aggressive, denying everything when the officers entered the apartment. When an officer exited the bedroom holding the crowbar and wheel lock, defendant asked, “Which one she said I hit her with?”
On April 26, 2018, Anja reported to UC Davis Medical Center that her ex-boyfriend Terrence Shaw had sexually assaulted her. She immediately recanted, admitting the report was false and the claim of sexual assault was a product of a delusion. Anja fabricated the accusation so that she could get mental health treatment. She also reported to UC Davis Medical Center that her boyfriend assaulted her with a crowbar and the club; she was treated at that facility for injuries stemming from this attack.
B. Intimate Partner Battering
Sacramento Sheriff's Deputy Dennis Prizmich testified as an expert on intimate partner battering. Intimate partner battering involves a cycle of violence or power of control wheel between an intimate couple where one person in the relationship maintained power and control over the other. Sometimes a victim of abuse may return to the abuser because they love the abuser and still want a relationship with that person.
Deputy Prizmich, who worked in the main jail, monitored several calls between Anja and defendant when they spoke to each other over the jail phone system when she visited him at the jail. Defendant repeatedly tried to avoid speaking about the incident during those calls, telling her he could not or would not talk about the case. He also tried to convince Anja not to testify and to tell the District Attorney's office she wanted nothing to do with the case. When Anja confronted him with her injuries, defendant replied, “[W]e gotta get all of this together.” Defendant told Anja that if she loved him she should “clean this up.” When Anja told defendant she would not let him put his hands on her again, defendant said, “Anja, stop that shit. That, that-that's irrelevant. We're not even gonna talk about no, no, no shit like that. That's not even necessary.” When Anja told defendant to keep his hands off of her, defendant replied, “Listen, I'm not gonna put hands on you. You ain't got to worry about that. I'm not gonna put hands on you. You ain't got to worry about that. I'm not gonna hurt you. I'm not gonna harm you.”
Deputy Prizmich opined the calls showed defendant was trying to control Anja by telling her he would get out of custody if she did not go to court, and by repeatedly telling Anja that he loves her and questioning whether she loves him.
C. Uncharged Misconduct
Defendant was engaged to Ishaa in 2013. On April 19, 2013, after defendant took her cell phone and found old messages from the father of her children, he accused Ishaa of having sexual relations with the man. Ishaa tried to get the phone back but defendant threw it off the balcony of their motel room. She tried to leave, but defendant “smacked” her back into their room. When Ishaa tried to grab the motel phone after landing on the bed, defendant yanked the phone's cord out of the wall. He then turned up the volume on the television, told Ishaa no one was going to hear her, jammed a chair against the door, and proceeded to beat her for hours, punching her in the head and choking her. Defendant threatened to kill Ishaa when she tried to fight back. He eventually left to get food, threatening to find and kill her if she left. He fed Ishaa when he returned, and had her use a bucket rather than going to the bathroom. Defendant let her leave the next morning but threatened to kill her if she went to the hospital or called the police.
The entire left side of Ishaa's face was black and purple, and so swollen her glasses would not fit. She also sustained bruising to her neck, left eye, and shoulder. As a result of this attack, defendant sustained convictions for assault by means likely to produce great bodily injury, spousal battery, criminal threats, false imprisonment, and unlawfully disconnecting a telephone line.
The Defense
Anja gave the wrong address and phone number on April 1, 2018, when she reported that defendant had body-slammed her. The responding officer saw no marks or redness on her body, although he did not examine her backside and moved only her hair to look for swelling.
Testifying on his own behalf, defendant denied body-slamming Anja on April 1, but admitted breaking her cell phone during an argument that day. Regarding the April 9 incident, he was not aware anyone called 911 until his arrest. Defendant was lying down in the bedroom closet to avoid lice contamination when Anja got home. Anja was with a neighbor who was holding defendant's belongings in his hands. Defendant snatched his things from the neighbor and chased him from the apartment. When he saw more of his things were outside, defendant went out and retrieved them.
Defendant noticed Anja was bleeding from her arm and the left side of her face. They got into an argument when defendant would not go outside and find out what happened. Defendant next returned to the closet while Anja sat in the living room. He did not strike her with the club or a crowbar. Defendant admitted not telling the police Anja was bleeding.
Defendant refused to talk about the case during his conversations with Anja because his lawyer advised him not to. He asked Anja not to show up as a way out of the false allegations.
Rebuttal
The officer who took Anja's statement on April 1 warned her she could go to jail if she gave a false report. When, as a ruse to get her to recant, he and his partner told her eyewitnesses disproved her story, Anja did not recant.
DISCUSSION
I
Dual Use
Defendant contends the upper terms for the assault with a deadly weapon and its bodily injury enhancement were both imposed in violation of the proscription against the dual use of facts at sentencing.
A. Proceedings Below
Defendant moved to continue sentencing until the effective date of Senate Bill No. 1393, which would give the trial court discretion to strike the serious felony enhancement. At the sentencing hearing, the trial court denied the motion as it would not strike the enhancement if it had the authority, for reasons it would provide at sentencing.
The court issued a tentative ruling that it would impose the upper term for the assault with a deadly weapon count, citing the aggravating factor that defendant engaged in violent conduct indicating a serious danger to society and would impose the upper term for that count's great bodily injury enhancement because defendant's prior convictions as an adult were numerous.
The court also said it would have declined to strike the serious felony enhancement if given the opportunity because “the nature and circumstances of defendant's present felonies and prior serious felony conviction and the particulars of his background, character, and prospects; the defendant cannot be deemed outside the spirit of the enhancement.” The court noted the probation report showed defendant's lengthy criminal career involving vulnerable female victims. This included an incident when, shortly after being discharged from custody on other offenses, he had sexual intercourse with a 17-year-old who was mildly mentally disabled. The court also noted that the prior uncharged misconduct incident took place less than two years after defendant was paroled from the incident with the 17-year-old. Likewise, the current incident took place shortly after defendant was paroled on the uncharged misconduct case. The court also recited the facts of his attack on Anja in support of its finding it would not strike the serious felony enhancement.
Defense counsel argued for a lesser sentence, asserting a person with no record who committed a robbery with a great bodily injury enhancement that put the victim in the hospital for a week would get only eight years. Counsel claimed defendant was being punished more severely because of his record, the doubling of the base term for the strike, the prison prior, and the serious felony enhancement. This made it improper to impose the upper term for the great bodily injury enhancement on the basis of his record, as it was “unjust for the record to be driving that much of the punishment.”
Later, counsel argued the “double use” of the same facts to impose the five-year serious felony enhancement, doubling the base term, and the prison prior, “is not just.” Regarding the upper term for the assault count, counsel asserted, “not to be cavalier, I have seen much worse assaults.” Counsel claimed the upper term should be reserved for assaults rendering the victim unconscious or suffering debilitating injuries from which the victim does not recover, and asked the court to exercise its discretion to impose the midterm on the assault count and the enhancement. Later, counsel characterized the assault here as falling on the middle part of the spectrum of felony assaults.
The trial court then imposed the tentative sentence without objection. In so doing, it noted the upper term for the assault count was based on his use of a heavy device, the steering wheel lock, which hit the victim's head so hard it caused a one-inch laceration on her head and left a pool of blood. The court also said the upper term for the enhancement was based on the priors that were not enhancing defendant's sentence. Finally, it related that the prosecution provided additional reasons the serious felony enhancement would not be stricken: defendant's attempts to keep Anja from testifying against him, and his failure to take ownership of his actions in this case or in any of his prior criminal cases.
B. Analysis
One prohibition in sentencing is the proscription against the dual use of facts. Courts “generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 350 (Scott); § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d).)
Defendant claims the upper term for assault with a deadly weapon uses the same facts-hitting the victim in the head with a steering wheel lock, causing her to suffer the head laceration, and the resulting danger to society from the violent conduct-that are elements of that crime or the great bodily injury enhancement. He further argues that the facts supporting the upper term on the great bodily injury enhancement, defendant's numerous adult convictions, was likewise impermissible as a prior conviction used to support an enhancement such as a prior prison term cannot also be used to justify an upper term for another enhancement or offense. (People v. McFearson (2008) 168 Cal.App.4th 388, 395.)
Failure to object to the dual use of facts at sentencing forfeits such a contention on appeal. (Scott, supra, 9 Cal.4th at p. 354.) While defense counsel characterized the assault as on the middle part of the spectrum and thus deserving a middle term instead of an upper term, counsel never invoked the dual use proscription to argue against or object to the upper term for the assault with a deadly weapon count. Defendant's dual use contention as to this count is forfeited.
Counsel did argue against the use of defendant's criminal record to justify an upper term for the great bodily injury enhancement and even employed the term “double use.” However, counsel's arguments against an upper term for the enhancement were limited to the asserted injustice of using a criminal record that already led to doubling the term for the assault count, the five-year serious felony enhancement, and the one year prison prior to also support the upper term for the great bodily injury enhancement. The rule against the dual use of facts is an absolute prohibition against using the same fact twice where prohibited; counsel here argued instead that not using the defendant's record to impose the upper term would be a better exercise of the court's discretion. Although the case here is closer than it is as to the assault with a deadly weapon count, once again the contention is forfeited.
Even if the contention regarding the great bodily injury enhancement is not forfeited, it is without merit. Before imposing sentence, the trial court clarified its prospective ruling and stated the upper term for the great bodily injury enhancement was based on the prior convictions not used to enhance the sentence. The strike and serious felony enhancements were based on the same conviction, a 2013 conviction for criminal threats from the uncharged misconduct case, while the prison prior was based on a prior conviction for unlawful sexual intercourse with a minor. Defendant has numerous other prior convictions, including an assault by means likely to produce great bodily injury, false imprisonment, and spousal battery from the uncharged misconduct case, as well as two felony convictions for Health and Safety Code section 11377 in separate cases and 10 misdemeanor convictions. Defendant claims the priors from 2013 and 2009 cannot be used because convictions from those cases were used for the strike, serious felony, and prison prior, the remaining convictions were relatively insignificant, being mostly misdemeanors, and his criminal record was used to prospectively deny striking the serious felony enhancement under Senate Bill 1393.
We disagree. Although the false imprisonment, felony assault, and spousal battery came from the same case as the criminal threats count, they involved separate crimes and separate actions and accordingly are not proscribed by the dual use rule. An enhancement is “an additional term of imprisonment added to the base term.” (Cal. Rules of Court, rule 4.405(3).) The act of declining to exercise the court's discretion to strike a lawful enhancement is not the same as imposing an enhancement; the court's use of defendant's criminal record to impose the upper term on the great bodily injury enhancement and to decline striking the serious felony enhancement does not violate the dual use rule.
II
Fines, Fees, and Assessments
A. Government Code Section 29550.2
Prior to imposition of sentence, defense counsel moved to “strike all the fines and fees that the Court is permitted to, ” based on defendant's indigence. The trial court replied: “I'm not inclined to reduce it to the minimum.” Without objection, the court imposed pursuant to Government Code Section 29550.2 a “main jail booking fee” of $453.62, and a “main jail classification fee” of $90.
Government Code Section 29550.2, subdivision (a) states in pertinent part:
“Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt.”
Subdivision (c) provides: “As used in this section, ‘actual administrative costs' include only those costs for functions that are performed in order to receive an arrestee into a county detention facility. Operating expenses of the county jail facility including capital costs and those costs involved in the housing, feeding, and care of inmates shall not be included in calculating ‘actual administrative costs.' ‘Actual administrative costs' may include any one or more of the following as related to receiving an arrestee into the county detention facility[.]” Subdivision (c) provides an extensive list of covered administrative costs including “[t]he classification of an arrestee.” (Gov. Code, § 29550.2, subd. (c)(7).)
Defendant claims the trial court was authorized to impose only a single fee under this provision. He claims the list of costs in subdivision (c) is definitional and thus subsumed under the costs of booking provided for in subdivision (a). From this, he concludes the classification fee was unauthorized. He also argues the court failed to make a proper finding regarding his ability to pay as it refused to make an inquiry into his ability to pay.
The language of subdivision (a) could not be clearer. It makes qualifying defendants “subject to a criminal justice administration fee.” This authorizes only a single fee under this provision, and there is no reason to ignore this language. Two Government Code section 29550.2 fees are one too many.
Although defendant did not object to the two fees, imposing two fees under this statute results in an unauthorized sentence that is not subject to forfeiture. (Scott, supra, 9 Cal.4th at p. 354.)
The parties differ as to the remedy to this error. As noted, defendant asks us to strike the $90.65 classification fee, while the Attorney General asserts the two fees should be combined into a single fee. We decline both suggestions.
The extensive list of costs provided in subdivision (c) as well as the language of subdivision (a) itself [“administration costs incurred in conjunction with the arresting and booking”] show this single fee has many potential components. As often happens, the two fees here followed the recommendation in the probation report. It is entirely possible that the Probation Department divided the actual costs covered by Government Code section 29550.2 into two components, defendant's classification, and the combined remaining costs. However, we decline to speculate whether or not the $90.65 classification fee is simply one component of the costs covered by Government Code section 29550.2 or part of the costs already counted in the other fee. Answering this question is better left to the trial court. We shall therefore vacate both fees and remand for additional proceedings on the Government Code section 29550.2 fee. On remand, defendant may again assert his inability to pay the fee, mooting his appeal regarding his ability to pay this fee.
B. Dueñas and Ability to Pay
Defendant asserts the trial court failed to make a proper finding of his ability to pay the $5,700 section 1202.4 restitution fine. This is based on his general objection to his ability to pay those fines and fees contingent on an ability to pay and the court's summary denial of his request.
Section 1202.4, subdivision (b) provides that where a defendant is convicted of a felony, the amount of the restitution fine shall be set, at the discretion of the court, between $300 and $10,000, “commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1).) In setting a fine above the minimum amount, the court shall consider “any relevant factors.” (§ 1202.4, subd. (d).) While a defendant's inability to pay is a relevant factor, a trial court also may consider other factors, such as the seriousness and gravity of the offense, the circumstances of the crime, and any economic gain derived by the defendant as a result of the crime. (§ 1202.4, subd. (d).) While a defendant's inability to pay might weigh against imposition of the statutory maximum, other factors may strongly weigh in favor. (People v. Sweeney (2014) 228 Cal.App.4th 142, 155.) Express findings by the court as to the factors bearing on the amount of the fine, including ability to pay, are not required. (§ 1202.4, subd. (d).)
The statute expressly places the burden on the defendant to prove his or her inability to pay. (§ 1202.4, subd. (d).) In the absence of a contrary showing, the court may presume that the defendant has the ability to pay the restitution fine out of future earnings, including prison wages. (People v. Urbano (2005) 128 Cal.App.4th 396, 405; § 1202.4, subd. (d).) Since defendant presented no evidence to the contrary, the trial court could presume defendant had an ability to pay, or that any inability was insufficient to justify imposing a lower fine.
Citing Dueñas, defendant further claims a remand is required for an ability to pay hearing with respect to the restitution fine, and the court operations and conviction assessments.
We join the courts concluding Dueñas was wrongly decided and hold that defendant was not entitled to an ability to pay hearing for the restitution fine and these assessments. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted November 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060; People v. Caceres (2019) 39 Cal.App.5th 917, 920.) We therefore reject the contention.
III
Jail Calls
Defendant contends it was an abuse of discretion and a violation of his self-incrimination privilege and due process rights to admit recordings of the conversations between the victim and himself at jail. We disagree.
Defendant's claim is based on the numerous instances in those recordings in which he declined to speak about the case or respond to her accusations about the attack, often in response to statements from Anja such as, “There anything else you want to tell me, ” “Are you gonna stop putting your hands on me, ” and “You need to keep your hands off of me.” He asserts the recordings violated his self-incrimination privilege and due process rights by allowing the jury to infer guilt from his refusal to discuss the facts of the incident with Anja.
The prosecution filed an in limine motion to admit the recorded conversations between defendant and Anja during her visits with him at the jail. Defendant objected to admitting the calls on relevancy and Evidence Code section 352 grounds; the trial court also granted his motion to deem all relevance and exclusion objections under Evidence Code section 352 to incorporate state and federal due process objections. Defendant also filed a motion to suppress the calls pursuant to the Electronic Communication Privacy Act. The trial court granted the prosecution's motion.
In Doyle v. Ohio (1976) 426 U.S. 610 , the United States Supreme Court held that a person's silence in the wake of Miranda warnings may be nothing more than an exercise of the right to remain silent, and that using that silence to impeach a person's trial testimony would be “fundamentally unfair and a deprivation of due process....” (Id. at pp. 617-618.) People v. Eshelman (1990) 225 Cal.App.3d 1513 held that the test in applying Doyle must focus on the circumstances surrounding the defendant's silence. “Doyle need not apply to defendant's silence invoked by a private party absent a showing that such conduct was an assertion of his rights to silence and counsel. [Citation.] On the other hand, when the evidence demonstrates that defendant's silence in front of a private party results primarily from the conscious exercise of his constitutional rights, then Doyle should apply.” (Eshelman, at p. 1520.)
Defendant never objected to the admission of the statements on self-incrimination grounds, forfeiting the contention on appeal. (People v. Williams (2008) 43 Cal.4th 584, 620.) To the extent a constitutional claim can be preserved through the due process objection, it is without merit.
Doyle error is predicated on drawing an inference of guilt from defendant's post-Miranda silence. Defendant's unwillingness to address the facts of the attack during the recorded conversations with Anja was not used to impeach his testimony and the prosecutor did not ask the jury to infer guilt from them. Accordingly, there is no Doyle error.
We agree with defendant that he must have been given a Miranda warning since the conversations at issue took place after his arraignment and appointment of counsel.
The prosecutor did argue that defendant made an adopted admission of guilt when, after Anja said, “Tell me you wont put hands on me again, ” defendant replied, “Okay, okay, okay. I wont put hands on you.” There is no Doyle error as the prosecutor was inferring guilt from defendant's statement that he would not hurt her, rather than from his silence in response to her accusations.
The recordings were properly admitted over the Evidence Code section 352 objection because they were relevant to show defendant's consciousness of guilt through his repeated attempts to get Anja to not testify or intercede with the district attorney and were not prejudicial. We also find no due process violation. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [“As a general matter, the ‘[a]pplication of the ordinary rules of evidence' ” does not amount to a due process violation].)
IV
Intimate Partner Battering Testimony
Defendant contends it was an abuse of discretion to admit expert testimony on intimate partner battering.
Defendant objected to the prosecution's motion to admit the evidence, asserting it was irrelevant because Anja did not recant, and the issue was not whether there was a relationship, but rather who caused the injuries. Counsel further argued the defense would not use Anja's visits to defendant in jail to challenge her credibility, asserting her “reliability rises or falls simply on the fact she falsely accused her boyfriends of rape.” The court found the jail recordings admissible “to the extent it addresses regarding the victim's credibility as a witness, given that she continues to visit him in jail and professes to love him in those portions of the transcript.”
Psychological evidence-such as “intimate partner battering” syndrome (Evid. Code, § 1107, subd. (f))-may be introduced to disabuse jurors of common sense misconceptions about the behavior of persons in certain affected groups. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1401.) “In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a).) Where the alleged victim's credibility is at issue, such expert evidence is admissible to explain actions like recanting or continuing a relationship with the accused. (People v. Gadlin (2000) 78 Cal.App.4th 587, 594 (Gadlin).)
There are two major components to a relevance analysis in this context: “First there must be sufficient evidence in the particular case to support a contention that BWS [battered women's syndrome] applies to the woman involved. [Citation.] Second, there must be a contested issue as to which BWS testimony is probative. [Citation.]” (Gadlin, supra, 78 Cal.App.4th at p. 592.)
Defendant argues there is insufficient evidence to support the first component of Gadlin because Anja was consistent in her accusations, did not recant or minimize her injuries, her visits at jail did not show helplessness or the cycle of power and violence, and there was no other evidence of other pressures on her to maintain the relationship. He also asserts the evidence was not probative because he did not use Anja's continuing relationship with defendant after the attack as a means for attacking her credibility.
The trial court possesses wide discretion to admit or exclude expert testimony, and we will not reverse the trial court's ruling on expert testimony unless we find a manifest abuse of discretion. (People v. Curl (2009) 46 Cal.4th 339, 359.)
There was evidence to support a finding the syndrome applied to Anja. The report to Aanerud that defendant had body-slammed her shows she was previously subject to domestic violence by him; Anja's report that defendant had also twice broken her cell phone supports an inference that domestic violence was more than incidental to the relationship. While Anja wanted the domestic violence to stop, she had motives for staying with defendant: she still loved him and wanted him to be her at-home caregiver. Her willingness to maintain the relationship by repeatedly visiting defendant in jail further supports a finding that she fit the intimate partner battering syndrome. Defendant's behavior towards Anja in the calls likewise supports a finding the syndrome applied, as his attempts to keep her from testifying and the use of emotional pressure (repeatedly telling her he loved her and by threatening to kill himself) are consistent with intimate partner battering syndrome.
Anja's ongoing visits to defendant in jail also give probative value to the expert testimony. Although the defense did not use the visits to attack Anja's credibility, her credibility was at issue. Notwithstanding defendant's decision not to raise the visits, a jury could nonetheless infer from Anja's profession of love, her refusal to accept Aanerud's offer of a safety plan, her months-long relationship with defendant, and her multiple visits with him after the attack, that her claims to have been attacked by him were not credible. The expert testimony was relevant to address such inferences that lay jurors might otherwise make from the evidence.
It was not an abuse of discretion to admit the expert evidence.
V
Senate Bill 136
Defendant contends, and the Attorney General agrees, that recently enacted Senate Bill 136, which limits the prior offenses that qualify for a prior prison term enhancement, applies retroactively to his case. We agree.
On October 8, 2019, the Governor signed Senate Bill 136, which amended Penal Code section 667.5, effective January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense.
Defendant's prior prison term at issue was not for a sexually violent offense. (See Welf. & Inst. Code, § 6600, subd. (b) [defining sexually violent offense].) Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill 136 is applied retroactively. We agree with the parties that the amendment to Senate Bill 136 should be applied retroactively in this case.
Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740, “ ‘that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) “A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. [Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill 136 narrowed who was eligible for a Penal Code section 667.5, subdivision (b) prior prison term enhancement. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we find that Estrada's inference of retroactive application applies. (Accord, People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].)
While appellate courts in this situation typically direct the trial court to strike defendant's prior prison term enhancements and “remand the matter for resentencing to allow the court to exercise its discretion in light of the changed circumstances, ” (People v. Jennings, supra, 42 Cal.App.5th at p. 682) this approach is unnecessary where, as here, defendant is convicted of a single offense and the trial court has no way to increase his term without improperly sentencing him to a greater total term than originally imposed. (People v. Serrato (1973) 9 Cal.3d 753, 763-764 [trial court cannot impose greater sentence on remand], disapproved on another issue in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Accordingly, we shall modify the conviction to strike the prison prior.
Defendant's sentence consisted of an upper term of four years for the felony assault count, doubled to eight years for the strike for the felony assault count, an upper term of five years for the great bodily injury enhancement, five years for the serious felony, and a year for the prison prior, a concurrent six-month county jail term for the misdemeanor assault count, and sentence on the domestic violence count stayed pursuant to section 654.
VI
Senate Bill 1393
Defendant contends that Senate Bill 1393, which was enacted shortly after sentencing, requires this case to be remanded so that the trial court can determine whether to strike the five-year serious felony enhancement.
At the time of sentencing, the trial court had no discretion but to impose the enhancement. (See former § 1385, subd. (b) [Stats. 2014, ch. 137, § 1].) While this appeal was pending, however, the Governor signed into law Senate Bill 1393, which granted trial courts the discretion not to impose the enhancement. (Stats. 2018, ch. 1013, §§ 1, 2, amending §§ 667, subd. (a) & 1385.) The act was effective January 1, 2019.
There is no dispute Senate Bill 1393 applies retroactively to defendant. (People v. Jones (2019) 32 Cal.App.5th 267, 272.) But remand is not automatic. Remand is not required where “ ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the]... enhancement' even if it had the discretion. [Citation.] [¶] The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been.” (Id. at pp. 272-273.)
Here the trial court stated it would not strike the section 667 enhancement had it the authority to do so, and gave valid reasons supporting that action. Defendant claims this decision's reliance on his criminal record is precluded by the prohibition against the dual use of facts. As we have already stated, declining to strike an enhancement does not implicate this rule.
Since the court indicated it would not strike the enhancement if given the discretion to do so, remanding for this purpose would waste judicial resources. We accordingly decline defendant's request for a remand on this matter.
DISPOSITION
The judgment is modified to strike the prior prison term allegation. The Government Code section 29550.2 fees are vacated and the matter remanded for proceedings on this fee consistent with this opinion. In all other respects, the judgment is affirmed.
I concur: HULL, J.
MAURO, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part II.B. of the Discussion, pertaining to defendant's challenge to the restitution fine, as to which I dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, on remand I would direct the trial court to assess defendant's ability to pay the restitution fine.