Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. Nos. F06903412-5 & F01900065-4. Wayne Ellison, Judge.
Richard J. Krech, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, J.
STATEMENT OF THE CASE
On July 3, 2006, the Fresno County District Attorney filed an information in superior court charging appellant Yolanda Christina Fuentes as follows:
Count I—assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1));
All further statutory references are to the Penal Code unless otherwise indicated.
Count II—assault with a deadly weapon (§ 245, subd. (a)(1));
Count III—battery with serious bodily injury (§ 243, subd. (d)); and
Count IV—threatening a witness (§ 140, subd. (a)).
On July 5, 2006, appellant was arraigned and pleaded not guilty to the charges.
On August 23, 2006, jury trial commenced.
On August 28, 2006, the fourth day of jury trial, the People rested and the court granted appellant’s oral motion for acquittal as to count IV (§ 1118.1).
On August 29, 2006, the jury returned guilty verdicts as to counts I, II, and III.
On September 29, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced her to a total term of four years in state prison. The court imposed the upper term of four years on count I and imposed concurrent upper terms on counts II and III. The trial court also found appellant in violation of probation in a separate matter (case No. F01900065-4), for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). As to that matter, the court imposed the middle term of two years to run concurrently with the four-year sentence on count I. The court imposed a $800 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 207 days of custody credits.
On the same date, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At the time of trial, the victim J. was a 15-year-old sophomore in high school. J. and her family, consisting of her parents and two siblings, had been residing on Balch Avenue for 13 years. Appellant and her children lived next door to J. for three of those years. J. and her family did not have a good relationship with appellant and her children and appellant’s family moved from the neighborhood prior to the spring of 2006.
In April 2005, appellant’s teenage daughters C. and D., sprayed J. with pepper spray and hit her. They also hit J.’s friend on that occasion. J. required the assistance of paramedics to remove the pepper spray from her eyes. J. and her friend also reported the incident to police and identified C. and D. as two of the attackers. J. said she wanted C. and D. to be prosecuted for the incident.
One year later, on May 6, 2006, J. and her then five-year-old sister, B., walked to the Pak-N-Go store on Kings Canyon Road and Maple Avenue, about six minutes from their home. Before J. and B. went to the store J. saw appellant’s brown van drive by her house. J. and B. walked home from the store and went through a parking lot in the back of a restaurant. J. was looking down at something in her hands when she heard B. tell her to look up because appellant’s daughters were approaching. J. looked up and saw C., D., and their aunt, T., walking towards them. J. also saw appellant across the street inside her brown van.
Although T. was apparently in the same age range as D. and C., T. was appellant’s sister, making her D. and C.’s aunt.
J. stopped and saw T. carrying a wooden baseball bat. J. pushed B. aside to prevent her from being hit. J. then asked the girls not to hurt B., who was hiding in the bushes. One of the girls said they were there because J. had called the police in the earlier incident. D. punched J., who punched her back. J. did not feel like she could run because there was no one else around and she was afraid B. was too scared to run.
C. tripped J. from behind and caused her to fall to the ground. D. then got on top of J.’s stomach, straddled J. with her legs to pin her down, and repeatedly punched her in the face. At the same time, C. held J. down by her wrist. J. covered her face with her hands but D. was still able to punch her in the face with her fist. As she hit J., D. yelled, “hit me back, bitch.” T. swung the bat hard and hit J.’s right leg about seven or eight times. While T. was hitting J. with the bat, C. stood to the left of J. and B. cried and yelled at the girls to leave her older sister alone.
J. began hitting D. back to get her off of her stomach. D. continued to hit J. but eventually got off of her. As soon as J. started to slowly get up she felt the bat strike her on the back of her head, near her right ear. J. fell back onto the ground and laid there for a few seconds. B. later told J. that appellant shouted “hit her in the head.” When J. eventually got back up, she saw the girls running away. J. ran over to B. and the two sisters started walking home.
Several bystanders asked J. if she needed help or needed a ride home. A woman holding a telephone asked if she wanted her to call the police. J. told the woman “no” because she was worried about getting B. home. B. testified she saw C. hit J. in the head with a bat. Appellant was present while J. was being hit and B. heard appellant say, “kill her.” T. also used the bat to hit J.
J. arrived home sobbing. Her father immediately approached and asked what had happened. J.’s mother was in the backyard of their home and could hear J. crying. J. was bleeding from the head and was transported to a hospital by an ambulance. She received five staples for the wound on the back of her head.
At the hospital, J.’s parents and physicians would not allow her to look at herself in the mirror. J.’s face felt swollen and bumpy. The back of her head and her sides hurt. She had difficultly moving her head, and her eyes repeatedly rolled backwards into her head. J. suffered memory loss as a result of the injuries and was on medication at the time of trial. When J. spoke with a police officer at the hospital, she told him about the assault. J. said she heard a lady across the street yelling at the assailants to stop hitting her. She also heard appellant say, “let’s go, hurry up.”
Fresno Police Officer John Gomez arrived at J.’s house at 7:15 p.m. on the day of the offenses. Gomez made contact with J. while she was in the back of an ambulance receiving treatment from paramedics. Officer Gomez said J. had numerous wounds on her face and body, including a one-inch cut on the top of her head, just above her ear. Her right eye was swollen, her nose was swollen and bruised, and her lower left eye was bruised and red. J. also had blood around her nose and mouth, a swollen lip, and marks and cuts on her legs. J. subsequently went to Children’s Hospital for treatment.
After interviewing J., Officer Gomez spoke with Beatrice Santos, who witnessed the incident. Santos lived across the street from the parking lot where the incident occurred. Santos told Officer Gomez she was watering her garden when she saw a brown van stop and park in the neighborhood. Santos then saw three juveniles and one adult exit the van. The adult was the driver of the van. The driver walked a short distance away from the van. Santos then saw the three juveniles assault another juvenile, who was walking with a younger child. Santos told Officer Gomez she yelled at the girls to stop fighting but they did not comply. Santos then went inside and called the police.
When Officer Gomez interviewed J. at the hospital, she told him she knew the people who assaulted her and said that two of them used to be her neighbors. J. recalled the assailants’ statements during the assault. D. told J. to “‘[h]it me back, bitch’” and “‘that’s what you get for calling the police.’” J. said the van was parked on the street and appellant was standing near the van. J. heard Santos yell at the girls to stop fighting. Appellant then yelled to her daughters, “‘[k]eep hitting her. Keep hitting her.’” Shortly after Santos yelled at the assailants, the assault stopped. J. said D. and C. hit her with their fists and kicked her with their feet. J. also said she was hit five times with a wooden bat.
Beatrice Santos testified she was watering her garden at the time of the incident. She saw three girls get out of a car and walk across the street to a parking lot. She then heard the sounds of blows. The girls who got out of the car were hitting another girl, who was on the ground, about 40 feet where Santos was standing. The girls hit the girl on the ground with a long, wide object. Santos did not specifically identify the object as a bat. However, she described the object as the “long thing” that is played with along with a ball that is thrown. Santos yelled to a man nearby to either bring her a telephone or to go call the police. She saw the girls get back into the van and leave the area. When the girl on the ground got up, she was not able to walk very well.
At trial, Santos acknowledged she told the police officer that she saw a brown van parked on the side of the road. However, she denied telling the officer that she saw an adult female get out of the van or that she, Santos, yelled to the girls to stop fighting. Santos thought the attackers were going to kill the girl on the ground and that is why she asked the man to call the police.
Silvino Villegas lived with Beatrice Santos. On the day of the incident, he went outside and saw Santos watering the garden. He also saw four young females, about age 14, in a nearby parking lot. Three of the girls knocked a fourth girl down to the ground and then two of them beat her with their fists while the other girl hit the victim with a two-foot club.
Santos sent Villegas into the house to retrieve a telephone. When he came out, Santos told him to call the police. However, Villegas did not know the police number. Villegas saw the victim get hit one more time before the assailants saw him holding a telephone. The assailants then ran to a van that was parked on a nearby street. Villegas described the color of the van as “[y]ellowish” and said it was similar to the wood paneling inside the trial courtroom. Villegas testified he did not see who was driving the van. He denied telling an investigator he saw an adult woman come out of the van.
Fresno Police Detective William Andrews spoke with J. three days after the incident. The interview took place at J.’s home. J. told Detective Andrews that appellant, D., C. and their “cousin” were the people who assaulted her. J. identified each of them in a photographic lineup. J. said she saw appellant in the driver’s seat of a gold-color van. Right after the assault began she saw appellant standing in a nearby parking lot. Andrews and J. later drove to the parking lot where the assault occurred. J. showed him the location of the assault and said appellant was standing on the pavement of the parking lot, adjacent to the street.
J. told Detective Andrews that appellant spoke during the assault. Appellant told the girls “‘[k]eep hitting her,’” “‘[d]on’t let her up,’” and “‘[h]it her in the head.’” After appellant told the girls to hit J. on the head, D. started punching J.’s head and kicking her. T. hit J.’s legs with a baseball bat. As the assault concluded, D. kicked J. in the ribs and said, “‘[t]hat’s for calling the cops, bitch.’” J. heard B. crying uncontrollably and also heard B. tell the girls to “[s]top” and “[d]on’t hit my sister.” After the assault stopped, J. saw D., C., T. and appellant walking back to the van and heard them laughing. She also heard appellant say, “That’s good. That’s good. You guys did good. That’s good.” When appellant was subsequently arrested she was driving a goldish-brown color van. Yazmin Toquillas, an investigator with the Fresno County District Attorney’s office, testified she spoke with Silvino Villegas regarding the assault. Villegas told Toquillas that at 4:30 p.m. on the day of the assault, he saw an adult female and three young females get out of a gray or light blue van that was parked on Mono Street.
Defense
Appellant’s 17-year-old daughter, D., testified she, her sister, and T. got into a fight with J. on May 6, 2006. According to D., J.’s younger sister, B., was present during the fight but appellant was not there. D. claimed she got to the location of the fight “[o]n foot.” As a result of the fight, D. was charged in juvenile court, admitted a misdemeanor offense, and was placed on probation.
At the time of the fight, D.’s family was in the middle of moving from one residence to another. She denied helping her family with the move. Instead, she testified she was in her old neighborhood to visit friends and relatives. D. did not supply the names of the friends and relatives she was visiting on the day of the incident. D. explained she was going to the store with her sister and T. when they saw J. and her sister B. According to D., B. did not witness the assault because J. told her to run home and D. saw her running away toward her house.
D. testified that T. had a stick, not a bat, and that T. found the stick on the ground. During the fight, D. straddled J. and punched her in the face while J. was on the ground. D. did not see the stick and did not see T. hit J. with the stick because D. was busy hitting J. at the same time. D. later admitted that the stick could have been a bat.
Fifteen-year-old C. testified she was involved in a fight with J. on May 6, 2006. D. and T. were also involved in the fight but C. claimed that appellant was not there. C. also said she got to the location of the fight “[o]n foot.” As a result of the fight, C. was arrested, admitted a misdemeanor offense, and was placed on probation.
On the day of the fight, C. was walking around with D. and T., visiting friends in their old neighborhood. However, she testified she did not know the names of the friends she visited. C. said she, D. and T. had walked to the vicinity of Jackson Avenue and Mono Street from their house on Belmont and Blackstone Avenues. Before the fight, they helped their mother and grandmother move households. They used their grandmother’s van to do so. According to C., D. also helped their family move earlier that day.
C. knew J., a former next-door neighbor. C. also testified that B. did not witness the fight because she ran home after J. told her to do so. After B. left, J. hit D. and C. tried to separate the two. C. said she did not knock J. to the ground. After J. somehow ended up on the ground, D. got on top of her, straddled her, and began punching her. C. said she and T. tried to stop the fight by pulling J. and D. away from each other. J. was on her back on the ground and C. grabbed her hands to pick her up to stop the fight. At the same time, T. put her arms around D. and pulled her off of J.
C. told the girls to stop fighting and urged D. to “come on because we’re going to get in trouble.” C. denied hitting, pushing, tripping, or kicking J., even though she admitted during juvenile court proceedings that she hit and fought with J. C. maintained that she and T. tried to breakup the fight between J. and D. However, C. also testified that T. hit J. in the head with a stick because J. was kicking T. According to C. the stick was about two-feet long and had a diameter between one-half inch and three-quarters of an inch. C. said the stick was a tree limb and that T. picked it up during the fight.
Appellant testified on her own behalf. She said she knew J. and her family and acknowledged the two families did not get along. She denied being present during the May 6, 2006 fight. Appellant said she spent the entire day moving her family’s belongings from Chestnut Avenue and Kings Canyon Road to their new residence on Belmont Avenue and Calaveras Street. Appellant said she used a U-Haul truck to move and her mother drove the rental vehicle. In making trips back and forth between the old and new residences, appellant drove by the neighborhood where the assault on J. occurred.
According to appellant, C. and D. helped her move in the morning. However, there was only room in the cab of the U-Haul for three people. As a result, only appellant, her mother, and her son could ride in the U-Haul back and forth between the old and new houses. On the day of the assault, appellant did not know C. and D. went to the old neighborhood to visit friends. She knew the girls were going to the store, but could not recall how long they were gone or when she last saw them before the assault occurred. She also could not remember what time the girls arrived home that evening.
DISCUSSION
I.
WITNESS COMPETENCY
Appellant contends the trial court committed reversible error by allowing the victim’s sister, six-year-old B., to testify even though she did not know the difference between truth and falsehood.
On August 25, 2006, the court called the victim’s sister, B., to the stand. B. signified she was six years old. The court then asked B., “Do you know what it means to tell the truth?” B. shook her head. The court then asked, “Do you know what it means to lie?” B. again shook her head. The court then allowed counsel to ask the prospective witness some questions. The prosecutor held up one finger and asked, “if I told you that I was holding up two fingers, would that be the truth or a lie?” B. stated, “The truth.” The prosecutor then asked whether B.’s parents told her “what’s good and bad.” B. stated, “Yes.” The prosecutor subsequently asked whether B.’s parents told her the difference between “what the truth is and what a lie is.” B., who did not yet attend school, responded, “The truth.” The prosecutor then said, “Okay. What is the truth?” B. replied, “About Yolanda.” At that point the court excused the jury from the courtroom and defense counsel said, “Well, at this point I would say there’s no foundation for qualification as a witness.” The court observed, “Well, I don’t know that the prosecution is finished qualifying the witness, so — at this point you might be right. I’ll decide that issue when and if we get to it this afternoon here. And I’ll hear from you outside the presence of the jury if necessary.” When the court and counsel returned to the courtroom for the afternoon session on August 25, the court stated:
“Well, given the nature of what occurred here with [B.] in the presence of the jury this morning, it was the court’s thought, that at least in terms of the court concluding that the witness is competent to testify, that that process perhaps should occur outside the presence of the jury.”
At that point, both counsel requested that the qualifying process take place outside the presence of the jury. B. returned to the stand and the following exchange occurred:
“BY MR. FRYE [deputy district attorney]: Hey, B. I’m going to ask you a couple questions. Okay? Is that okay? Yes? Okay. Good. I’m going to show you something. Can you tell me is this a fish or a bird?
“A [by B.] A fish.
“Q Okay. Now, if I told you that this was a bird, am I right or wrong?
“A Um wrong.
“Q Okay. Do you know that … when you talk here in court you’ve got to tell … you’ve got to tell us things that are right and not wrong. Do you understand?
“A (Nods head).
“THE COURT: Indicating yes with a nod. Go ahead.
“MR. FRYE: Q Who did you come here to court with today, do you know?
“A No.
“Q Did you come with your mom?
“A (Nods head.)
“Q Yeah? Did you come with your sister [J.]?
“A (Nods head.)
“Q Yeah? Did you come with your dad?
“A (Shakes head.)
“THE COURT: Indicating no.
“MR. FRYE: Right. Thank you. [¶] Q If I said that you came here with your dad, would that be right or wrong?
“A Right.
“Q Okay. If you said that you came here today with your dad, would that be right or wrong?
“A Wrong.
“Q Okay. Do you understand that you have to tell us things that are right and not things that are wrong?
“A Not things that are wrong.
“Q Okay. You want to tell us what’s right, right? Is that a yes?
“A Yes.”
Immediately after this exchange, defense counsel indicated he did not think B. was qualified to testify as a witness. Defense counsel observed, “I think the question of right and wrong is different than truth — than telling the truth and telling a lie. Right could be what somebody told you is right which may not be accurate.” The court excused B. and conferred with counsel. The prosecutor advised the court that B. made a statement to police on May 9, 2006, three days after the offenses. The prosecutor indicated he was seeking to have B. testify about what she told the police. The prosecutor recounted what B. told the interviewing officer, Detective William Andrews:
“Okay. I asked [B.] what happened to [J.]. Or first of all it was prefaced by I told [B.] I wanted to talk to her about what happened to [J.] when they are walking home from the store. I asked [B.] what happened to [J.]. [B.] responded four girls beat her up. I asked [B.] if she knows the girls’ names and she responded [C.], [D.], Yolanda and the fat girl. [B.] said she didn’t know the fat girl’s name. I asked [B.] where they hit [J.]? And she responded in the eyes, back, legs and hit her feet and head with a bat.”
According to the prosecutor, B. identified a photograph of appellant. Upon further inquiry by the court, the prosecutor indicated he was calling B. to testify whether she knew the names of the girls who beat her sister.
After further discussion with counsel, the court called B. back into the courtroom and the following exchange occurred:
“THE COURT: I want to ask you a couple of questions, [B.]. Okay? My name is Wayne. Now [B.], I just want you to answer me for a moment just yes or no. All right? Do you know what it means to tell the truth, [B.]?
“THE WITNESS: (Shakes head.)
“THE COURT: Can you answer yes or no?
“THE WITNESS: Yes.
“THE COURT: You do know. Okay. Can you tell me what it means to tell the truth?
“THE WITNESS: (Shakes head.)
“THE COURT: Tell me what does it mean? If I say [B.], you tell the truth, what does that mean?
“THE WITNESS: Yolanda hit [J.].
“THE COURT: Okay. So if you said that Yolanda didn’t hit [J.], would that be true?
“THE WITNESS: (Shakes head.)
“THE COURT: It wouldn’t be true. What would it be?
“THE WITNESS: Wrong.
“THE COURT: Questions counsel?
“MR. SCHULTZ [deputy public defender]: No.
“MR. FYRE: No.
“THE COURT: I’m satisfied, counsel, that the witness is competent to testify in this matter. Okay. Ready for the jury?”
B. subsequently testified that C. hit her sister J. in the head with a bat. B. described C. as “[n]ot the one whose skinny, the one whose big.” B. also said five girls were involved in the beating. B. said Yolanda was present and “said to kill her.” B. did not hear Yolanda say anything else. B. said her sister was hurt “[o]n her head, on her back, on her feet.” B. said the incident occurred as she and her sister were coming from the store, where they got a cookie and a soda. B. said the girls hit her sister J. with a bat. B. indicated T. and C. were the ones who hit her sister with the bat. On cross-examination, B. said she knew T.’s name at the time of the incident. B. testified she told her mother T.’s name. B. said her family talked to her about what she should say in court but they did not help her remember.
Under Evidence Code section 700, every person, irrespective of age, is qualified to be a witness. A person’s ability to perceive and recollect goes only to the extent of his or her personal knowledge, and therefore impacts solely the admissibility of his or her proffered testimony. (Evid. Code, § 702.) By contrast, the factors that bear on a person’s disqualification as a witness are (1) the incapacity to express oneself about the subject of the testimony so as to be understood or (2) the incapacity to understand the duty of a witness to tell the truth. (Evid. Code, § 701.) All witnesses, regardless of age, are presumed qualified and may testify unless a ground for disqualification is proved. (Evid. Code, § 700; Adamson v. Dept. of Social Services (1988) 207 Cal.App.3d 14, 20.) The burden of proof is on the party who objects to the proffered witness and a trial court’s determination will be upheld on appeal in the absence of clear abuse of discretion. (People v. Anderson (2001) 25 Cal.4th 543, 573.) The challenging party must establish a witness’s incompetency by a preponderance of the evidence. (People v. Farley (1979) 90 Cal.App.3d 851, 869.) Unlike a witness’s personal knowledge, a witness’s competency to testify is determined exclusively by the court. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 61, p. 93.)
Appellant contends in the instant case:
“[B.] should have been found incompetent on the basis of [her voir dire testimony about Yolanda], since it indicated either that she did not know the difference between truth and falsehood, or that she could not distinguish between what she believed to be true because someone told her and what she knew to be true because she had seen it herself. [Citation.]
“It is clear from [B.’s] further testimony that she did not know truth from fantasy or falsehood. The prosecutor asked her if she came to court with her dad and she shook her head no. He asked her if it would be right or wrong if he said she came with her dad, and she said, ‘Right.’ He asked her the exact same question again, telegraphing that she had not answered as he wanted her to, that is, ‘rightly,’ and she answered, ‘Wrong.’ When asked if she understood that she had to tell ‘things that are right and not things that are wrong,’ she merely parroted back the last few words of the prosecutor’s question: ‘Not things that are wrong.’ She barely answered the prosecutor’s question, ‘You want to tell us what’s right, right? Is that a yes?’ These are not the responses of a child who has internalized the basic concepts of truth and falsehood, but of one who very much wants to give the ‘right’ answer, the answer that authority figures want to hear, the answer that would allow her to testify as her family wished.”
Appellant further contends the trial court erred in equating “right and wrong” with “true and false.” Appellant notes B.’s trial testimony was “completely inconsistent” with her statements at the competency hearing, given on the same afternoon in court. Appellant submits this discrepancy demonstrates that B. was unable to understand her duty to tell the truth or was so confused that she was unable to express herself so as to be understood when she tried to do so. In any event, appellant submits the questions and answers upon which the trial court qualified B. did not provide an adequate basis for doing so. Appellant further contends any questions directed towards B. to determine her competence should have been asked as to matters whose truth was undisputed, such as the number of fingers the prosecutor was holding up, rather than matters that were ambiguous or disputed. Appellant concludes: “Apart from statements about appellant’s involvement in the incident in which her sister was injured, [B.] said nothing to indicate she understood the distinction between truth and falsehood. The trial court’s qualification of her as a witness amounted to an abuse of discretion.”
Appellant’s contentions must be rejected. As to the consistency of B.’s testimony, inconsistencies in testimony and a failure to remember aspects of the subject of the testimony do not disqualify a witness. Rather, they present questions of credibility for resolution by the trier of fact. (People v. Avila (2006) 38 Cal.4th 491, 589-590.) Thus, the trial court did not abuse its discretion in ruling that B. was competent to testify as a witness even though she subsequently provided statements that might be portrayed as inconsistent. As to the distinction between “right and wrong” and “truth and falsity,” a witness’s capacity to communicate and understand the duty to testify truthfully is a preliminary fact to be determined exclusively by the trial court. The trial court’s determination will be upheld absent a clear abuse of discretion. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1368.) As respondent notes, the purpose of the trial courts inquiry was to determine whether B. understood the difference between truth and falsehoods and whether she understood her duty to tell the truth. While defense counsel objected to B. as a proffered witness, he simply did not establish the witness’s incompetency by a preponderance of the evidence. (People v. Avila, supra, 38 Cal.4th at p. 589.)
Appellant lastly contends: “The error of admitting six-year-old [B.’s] testimony was extremely prejudicial and therefore requires reversal.” Appellant submits that B.’s testimony carried great weight with the jury by “validating all the hearsay constituting the remainder of the prosecution’s case, since [B.] was the only percipient witness whose testimony at trial supported the prosecutor’s burden that appellant was guilty.” A review of the entirety of the record suggests otherwise. B. essentially testified C. and T. hit J. with a bat that she saw C. hit J. in the head with the bat, and that she heard appellant say “kill her.” B. identified appellant in court and testified that J.’s back, head, and feet were hurt during the assault.
By comparison, J. testified she saw C., D. and T. walking toward her in the parking lot. She also saw appellant across the street inside her van. At the hospital, J. told an officer she heard appellant say “let’s go, hurry up.” J. told Officer Gomez she saw appellant standing by her van during the assault. J. told Gomez she heard appellant yell, “[k]eep hitting her. Keep hitting her.” Three days after the assault, J. spoke with Detective Andrews and identified appellant in a photographic lineup. J. told Andrews she saw appellant in the driver seat of a gold color van. Detective Andrews drove J. to the scene of the assault. She showed Andrews where appellant was standing during the assault. J. told Andrews she heard appellant shout to the girls “[k]eep hitting her,” “[d]on’t let her up,” and “[h]it her in the head.” J. said after appellant made those statements, D. began punching J. in the head and kicking her. T. began hitting J.’s legs with the bat. J. also told Detective Andrews she saw D., C., T. and appellant walk back to the van together after the assault. The four of them laughed and appellant told the other three: “That’s good. That’s good. You guys did good. That’s good.”
Silvino Villegas told Investigator Toquillas he saw an adult female get out of a van with three young females. Beatrice Santos told Officer Gomez she saw four females get out of the van. Santos said one of the four, the van driver, was an adult. At trial, Santos said the girls got back into the van after the fight but she did not see who was driving the van.
During the defense case, appellant, C., and D., testified appellant was not present when the assault occurred. Appellant claimed she spent the entire day moving and did not know her daughters were going to visit friends in the neighborhood where the fight occurred. D. and C. both testified their family was moving on the day of the assault. D. testified she did not help her family move. However, C. and appellant both testified that D. did help the family move. C. claimed the family moved their belongings by using their grandmother’s van. Appellant testified they used a U-Haul truck that only had seating for three people. C. and D. testified they were in the old neighborhood to visit friends and family on the day of the incident. D. said they were visiting “old relatives and friends.” C. testified they were visiting “[o]ld friends in the neighborhood” and not visiting relatives. C. was unable to supply the names of the people they visited. D. testified B. ran home at J.’s instruction and did not witness the assault.
Evidence Code section 353 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
A miscarriage of justice shall be declared, only when the court, after an examination of the entire cause, including the evidence, is of the opinion it would be reasonably probable a result more favorable to the appealing party would have been reached absent the alleged error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
As respondent notes, B.’s testimony was brief and added little to the strength of the prosecution’s case. J.’s statements to Detective Andrews and Office Gomez, particularly those graphically describing the assault and its aftermath — were far more damaging to appellant. It is not reasonably probable a result more favorable to appellant would have been reached had the court excluded the testimony.
II.
CRIMINAL CONDUCT BY APPELLANT’S DAUGHTERS
Appellant contends the trial court committed prejudicial error by admitting evidence of a prior assault by C. and D. upon J., in which appellant was not involved.
On August 23, 2006, the prosecutor moved in limine to introduce evidence of events other than the one that occurred on May 6, 2006. The prosecutor said the primary other incident occurred between members of appellant’s family and another sister of J. on January 18, 2005, According to the prosecutor, while appellant held her by her hair, D. and others beat J.’s sister and J.’s family, in turn, summoned the police. On May 6, 2006, D. told J. “‘hit me back, bitch’” and “‘that’s what you get for calling the police.’” J. told an interviewing officer that she interpreted D.’s statements to refer to the January 2005 incident in which D. and C. fought her sister. In response to the prosecutor’s explanation, defense counsel noted J. was neither present at nor involved with the January 18, 2005 event and did not have any contact with law enforcement at that time. Thus, defense counsel could not see any connection between the January 2005 event and the May 6, 2006 event.
The prosecutor also noted that a male assaulted J.’s father on January 19, 2005. The prosecutor specifically related, “The defendant’s boyfriend, or whomever, goes over and then talks to the father about the fact that they shouldn’t have called the police and then assaults the father with this metal pipe.” The assailant apparently was ultimately committed to state prison for that offense.
The prosecutor ultimately acknowledged that J. was not present at the January 2005 incident and had nothing to suggest she called the police with respect to that incident. However, the prosecutor did have information about a reported April 26, 2005, incident in which D. and others hit and kicked J. and C. pepper sprayed J. Upon questioning by the court, the prosecutor acknowledged the April 26, 2005, incident was reported to police but no arrests were made and no criminal charges were filed.
The court then queried defense counsel: “[W]hy shouldn’t the People be able to have [J.] describe the [April 26, 2005] incident as a plausible explanation for the comment made ‘that’s what you get for calling the police’?” Defense counsel explained that J. herself had never drawn a connection between the April 2005 and May 2006 incidents and that there had never been any further police investigation on the April 2005 incident. In defense counsel’s view, “[T]here’s nothing that connects the two.” The court responded, “Well, you seem to be arguing that it’s not relevant because [J.] doesn’t think it’s relevant. Can’t the jury make their own determination about that as to evaluate that incident in light of the statement and draw their own conclusions about whether that incident may be the motive [D.] was referring to, whatever [J.] may think of it?” Defense counsel replied, “I think the passage of time alone is sufficient to make that ... too vague and unconnected.”
The court took the matter under submission and then ruled from the bench regarding the April 26, 2005, incident:
“First of all, the incident on April 26th, 2005, the fact that there was a fight, the fact that it was reported to the police, the fact that [D.] could very well, under the circumstances, have interpreted that [J.] was responsible for that incident being reported to the police, all gives meaning to the comment later in May of 2006, ‘that’s what you get for calling the police.’ I haven’t heard any other reasonable explanation for what that could otherwise mean or some explanation that would be less prejudicial, I suppose, if that’s the right word. Because ... there is nothing particularly prejudicial about that. There is no evidence that I’ve heard so far that the defendant here was in any way involved in that incident.
“And in some fashion it kind of cuts two ways, to be quite honest. The defendant here is being charged with a violation of Penal Code Section 140 in Count Four. And I suppose the argument could be made by the defense that [appellant] here could be unaware of – until after it occurred, unaware of the motivations of [D.] to commit this crime. That raises a lot of different issues that I don’t know that you’ve thought about. You certainly haven’t talked about. But in terms of the bare issue of relevance, it seems to me that the April 26th, 2005, event is relevant to the motive to commit this crime even independent of Count Four in light of this statement of [D.] in the midst of committing the crime.
“And as I said, it’s not particularly prejudicial since there is nothing to suggest that [appellant] was in any way involved in that event of April 26th, 2005. And you can tell me, counsel, if – that you have some offer of proof to suggest otherwise and I’ll reconsider that. So I’m going to allow that.”
After agreeing to admit evidence of the April 2005 incident, the court went on to address the January 18, 2005 incident:
Victim J. subsequently testified that appellant was her next door neighbor for about three years and that J. knew some of her children, including C. and D. J said she did not have a good relationship with appellant’s family during the three years they lived next door to one another. J. said she had problems with C. and D. On one occasion, J. was at a friend’s house and C. and D. walked by and “pepper sprayed” J. while hitting her. J. said paramedics came out to remove the pepper spray from her eyes and the friend’s mother summoned police. J. explained the pepper spray incident occurred in the first year they lived next door to one another. J. also testified she never had to go to court to testify in a matter involving the pepper spray. J.’s mother testified she lived next door to appellant and her family for “[b]etween a year and a half to two.” J.’s mother said appellant had daughters and there were problems between her family and appellant’s family. On cross-examination, J.’s mother acknowledged her family and appellant’s family did not get along with one another.
Appellant argues on appeal:
“Evidence of the prior incident had virtually no probative value. It was unnecessary for the prosecution case, since any relevance it had to the events with which appellant was charged was cumulative to the evidence of ‘bad blood’ between the families, which the trial court had ruled the attorneys could mention and that [J.] and her mother could convey to the jury. In fact, [J.] did testify about the bad relationship she had with appellant’s family before she testified about the prior incident, rendering the latter testimony wholly cumulative. Even if [J.] had not so testified, her mother told the jury about the problems between the families, so that this highly inflammatory evidence about the prior incident was completely unnecessary.
“Other than to show general antipathy, the prior incident was rendered irrelevant by the absence of any evidence to show appellant even knew about it. Thus, although it may have been relevant to [D.’s] and [C.’s] motive, etc., these factors were not at issue in this case because the girls admitted hitting [J.]. It was appellant’s motive, plan, designed, etc., that were at issue in this trial, and as to these the prior incident could not be relevant without a showing that appellant at least was aware of the prior incident.
“… If there had been evidence that appellant was present at the scene of the prior assault, or had somehow aided and abetted that incident, evidence of the prior incident may have been relevant. Absent such a link, however, the evidence only tended to show [D.] and [C.’s] motives; yet the prior incident was introduced into appellant’s trial ostensibly to show a motive for the instant assault — in other words, to show appellant’s state of mind.”
Evidence Code section 1101, subdivision (a) prohibits the admission of uncharged offenses by a person to prove that person’s criminal disposition. But, evidence of prior uncharged acts may be admitted when relevant to prove a fact, “such as motive, opportunity, intent, preparation, plan, knowledge [or] identity.” (Evid. Code, § 1101, subd. (b).) Even if relevant, the trial court must still determine if the evidence is admissible pursuant to Evidence Code section 352. “We review the trial court’s determination for an abuse of discretion, examining the evidence in the light most favorable to the court’s ruling.” (People v. Catlin (2001) 26 Cal.4th 81, 120.)
Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish. Nevertheless, proof of the presence of motive is material as evidence tending to refute or support the presumption of innocence. A motive is a cause or reason that moves the will and induces action. Motive is an intermediate fact that may be probative of such ultimate issues as intent, identity, or commission of the criminal act itself. “‘[T]he intermediate fact of motive’ may be established by evidence ‘of prior dissimilar crimes.’ [Citation.] ‘Similarity of offenses [is] not necessary to establish this theory of relevance.’” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.) That is because the motive for the charged crime arises simply from the commission of the prior offense. The existence of a motive requires a nexus between the prior crime and the current one. However, such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes. (Ibid.)
The relevancy of evidence that proves crimes other than those charged must be examined with care, due to the prejudicial nature of all such evidence. Such evidence should not be admitted simply on the showing that some part of the transaction is relevant to the case. The possibility of severing relevant from irrelevant portions should be considered, thereby protecting the defendant against reference to other crimes where it has no tendency to establish facts pertinent to the proof of the crimes charged. (People v. Perkins (1970) 7 Cal.App.3d 593, 602.)
Here, appellant implicitly contends her motive for the 2006 offense could not simply arise from the April 26, 2005, offense because the prosecution failed to show her involvement with that earlier offense. Clearly, the conduct of C. and D. in 2006 did not satisfy the requirements of Evidence Code section 1101, subdivision (b) because the prosecution did not establish that appellant “committed a crime, civil wrong, or other act” in April 2005. Nevertheless, as set forth in CALCRIM No. 401, the prosecution in the instant case had the burden of proving that appellant knew her daughters intended to commit the charged crimes and intended to aid and abet them in committing those crimes. An aider and abettor must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) Accomplice liability is derivative, in that it results from an act by the perpetrator to which the accomplice contributed. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Here, the “criminal purpose of the perpetrator” appeared to be inextricably intertwined with the 2005 pepper spray incident. This was underscored by D.’s statement to J. during the 2006 assault: “‘That’s what you get for calling the police.’” Evidence of the prior assault in April 2005 was probative as to appellant’s motivation for involvement in the 2006 incident. As respondent observes, “[I]t tended to prove that appellant and her daughters committed the assault on [J.] because she reported [D.] to the police.”
Assuming arguendo the evidence was relevant to motive, appellant contends it was “clearly outweighed by prejudice to appellant, and thus it was erroneous to introduce it into appellant’s case.” She submits the evidence of the violent nature of the assault involved in the prior incident was “‘inherently prejudicial.’” She specifically contends that “‘prejudging’” is the real harm in her case:
“… The introduction of the prior incident of April 15, 2005 [sic] was prejudicial precisely because presentation of the incident at appellant’s trial even though she was not involved, implied to the jury that appellant was responsible for her daughters [sic] actions. In other words, evidence which would have been appropriate at the trial of her alleged co-participants, was introduced against her at a trial in which she was the sole accused, sending the unmistakable signal to the jury that the trial court believed that appellant was not only aware of the prior incident, but that she was criminally liable for the conduct of her daughters, the precise contested issue of fact in the trial. [¶] ... [¶]
“The improperly admitted evidence of the prior attack on [J.] prejudicially portrayed appellant’s family as not only hostile towards [J.’s] family but physically violent towards [J.] herself, and thus tended to lump appellant together with her daughters as responsible for any violence suffered by [J.]. Any slight residual probative value in this ‘inherently prejudicial’ evidence could not possibly outweigh such prejudice.”
Evidence Code section 352 provides:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Evidence Code section 353 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “ prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638; see People v. Samuels (2005) 36 Cal.4th 96, 124.)
Evidence Code section 352 gives the trial court broad discretion when weighing the probative value and prejudicial effect of relevant evidence. (People v. Gurule (2002) 28 Cal.4th 557, 654.) Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendant’s case based upon extraneous or irrelevant considerations. (People v. Rogers (2006) 39 Cal.4th 826, 863.) However, prejudice as contemplated by Evidence Code section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in an Evidence Code section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The Evidence Code speaks in terms of undue prejudice. Thus, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
An appellate court will review the trial court’s admission of such evidence for an abuse of discretion, and will uphold it unless the trial court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.) A “miscarriage of justice” should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, such reasonable probability did not exist. In ruling on the motion in limine, the trial court thoughtfully considered the evidence of the April 26, 2005 incident, found it relevant to motive given D.’s statement during the May 2006 crime, and further found it was not particularly prejudicial given appellant’s obvious noninvolvement in the April 26, 2005 incident. The trial court’s meticulous reasoning process simply cannot be construed as “arbitrary, capricious or patently absurd” and appellant’s claim of error under Evidence Code section 352 must be rejected.
The trial court did not abuse its discretion in declining to exclude evidence of the April 26, 2005 pepper spray incident.
III.
THE UPPER TERM OF IMPRISONMENT
Appellant contends her four-year upper term sentence on count I (assault by means likely to produce great bodily injury) must be stricken under the authority of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] and the sentence should be reduced to the three-year middle term of imprisonment.
Appellant’s probation report indicated she was on probation pursuant to Proposition 36 at the time of the instant offenses. She had pleaded guilty on January 14, 2003, to felony possession of a controlled substance. After receiving a Proposition 36 disposition of probation following her plea, appellant violated the conditions of her probation on four occasions. Each violation resulted in a revocation of probation. Appellant was also convicted of misdemeanor battery on August 30, 2002. On December 31, 2002, after appellant failed to appear in court on that matter, the court imposed a 36-month conditional sentence and ordered her to serve 15 days in county jail. On July 20, 2004, the court convicted appellant of violating a domestic violence order and imposed a 24-month conditional sentence with a suspended 90-day jail sentence.
On September 29, 2006, the trial court expressly indicated it had read and considered the probation report. In that report, the deputy probation officer cited a numbers of facts relating to the defendant as circumstances in aggravation. (Cal. Rules of Court, rule 4.421(b).) Those facts included: (a) appellant engaged in violent conduct indicating a serious danger to society; (b) appellant’s prior convictions as an adult were numerous or of increasing seriousness; (c) appellant was on probation when the crime was committed; and (d) appellant’s prior performance on probation was unsatisfactory. The probation officer found no circumstances in mitigation with respect to appellant (Cal. Rules of Court, rule 4.423).
After referring to the report, the court sentenced appellant in the following manner
“... [F]or two reasons I’m going to deny probation in this matter. First of all, because of the serious nature of this crime and, in particular, the serious nature of your involvement in this crime. But also because of the fact that you have been an abject failure on a grant of probation from this court. Essentially, just ignored directions from the court to try and do something about your drug addiction problems. And it would be a joke to grant you probation after your behavior in the case number 065-4 that’s before the court. So for those reasons probation is denied. [¶] ... [¶]
“… I find the circumstances in aggravation to outweigh those in mitigation.
“In Count One, a violation of Penal Code Section 245, I’m ordering you committed to the Department of Corrections for the aggravated term of four years....”
Appellant now contends:
“Because the jury here was asked only to find whether appellant was guilty or not guilty of the crimes charged and no special findings were addressed to the jury; and because appellant’s prior conviction resulting in her being on probation at the time of the instant offense was not used as an aggravating factor when the trial court selected the aggravated sentence while it specifically was used to deny probation, there is no constitutional basis to sentence appellant to more than the three year mid-term.”
In Blakely v. Washington (2004)542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this state’s Determinate Sentencing Law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the court held California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] ... [¶]
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury....
“... Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ [¶] ... [¶]
“... The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
Under established authority, the same fact may be used both to deny probation and to support imposition of an upper term sentence. (Black II, supra, 41 Cal.4th at p. 817.) Here, the trial court expressly denied appellant probation “because of the fact that you have been an abject failure on a grant of probation from this court.” Courts have held that no jury trial right exists on matters involving the issue of recidivism. (People v. Thomas (2001) 91 Cal.App.4th 212, 221.) The trial court’s conclusion as to denial of probation and imposition of the upper term was predicated upon appellant’s recidivism and this did not entail a right to trial by jury.
The trial court imposed an upper term based on judicially-found facts deemed constitutionally permissible by the courts of California and re-sentencing is not required on count I.
IV.
CUMULATIVE ERROR
Appellant contends the cumulative impact of the alleged errors necessitates reversal of the judgment of conviction. She predicates cumulative error on “inculpatory testimony ... in the form of hearsay which was buttressed with introduction of ‘inherently prejudicial’ and irrelevant testimony from [J.] about the prior incident not involving appellant and then further supported by the incompetent testimony of [B.], who, in voire dire, could not exhibit an understanding of the concept of ‘truth.’”
In a close case, the cumulative effect of multiple errors may constitute a miscarriage of justice. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1236; People v. Holt (1984) 37 Cal.3d 436, 458-459.) Theoretically, the “cumulative errors doctrine” is always applicable in criminal cases. The litmus test is whether defendant received due process and a fair trial. Generally speaking, an appellate court (1) reviews each allegation; (2) assesses the cumulative effect of any error; and (3) determines whether it is reasonably probable the jury would have reached a result more favorable to the defendant in their absence. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
We have devoted a substantial amount of text to the instant appeal and a second detailed review of appellant’s contentions is unnecessary here. Although appellant on appeal has made several allegations of error, we have not found any errors, separately or in combination, affecting the verdict. (People v. Bloom (1989) 48 Cal.3d 1194, 1232.) In our view, there was no accumulation of errors constituting a miscarriage of justice (Cal. Const., art. VI, § 13) in the instant case and reversal is not required. (People v. Bolden (2002) 29 Cal.4th 515, 567-568.).
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.
“I’m not going to allow any testimony, at least based on these principles, in the People’s case-in-chief about what happened in January 18th, 2005. It seems to me that there’s nothing, at least based on the offer of proof, to connect [J.] in any way to that event or to suggest that [D.’s] comments should be interpreted in that way, whatever [J.] might think about it. Because there just isn’t any factual connection from which the jury can reasonably draw that inference in the court’s view. And because of the fact that the defendant is involved in that incident it is prejudicial.
“So, you know, it may have some very slight probative value in the sense that [J.] thinks it’s related. And that’s very slight I would point out. But the prejudicial effect of hearing about an incident in which another sister was beaten wholly unrelated to this event is very great. And in weighing that under 352 I’m going to preclude that, mention of that January 18th, 2005, incident. And I want to caution you, counsel, that I want you to let both [J.] and her mother and any other family members who might testify who are aware of that January 18th event that they are not to mention it in response to mention by anyone, nor is [J.] to express her speculation about that unless I rule otherwise.…”