Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F02009
BUTZ, J.A jury convicted defendant Altonio Maurice Hawkins of inflicting corporal injury on his wife. (Pen. Code, § 273.5, subd. (a).) The trial court placed defendant on formal probation for five years, and defendant timely filed this appeal.
On appeal, defendant contends the trial court improperly admitted evidence of a prior incident involving his wife, both because it did not meet the statutory requirement for admission and because it was more prejudicial than probative. We conclude the trial court did not abuse its discretion, and even if it did, any error was harmless. We shall modify the judgment to award additional presentence credits, and otherwise affirm.
FACTUAL BACKGROUND
The victim testified that on March 14, 2008, she was driving with defendant, her husband, in the car. They were discussing an issue involving her daughter, and defendant became angry. The victim pulled over and stopped the car. Defendant tried to grab the car keys, and he choked her with one hand and bit her on her left hand, drawing blood.
Two peace officers testified and corroborated her injuries, and the jury saw photographs of those injuries. The officers testified the victim was upset and fearful.
The victim also testified that in May 2007, she was riding in a car with defendant when he became upset and began driving fast on the freeway, moving in and out of the carpool lane, ignoring her pleas to slow down. On cross-examination, she testified he was not driving even 10 miles per hour over the speed limit and she was “not nervous, but [she] didn’t want to get a ticket.”
The defense offered no evidence.
DISCUSSION
I
Defendant contends the trial court should not have admitted the May 2007 incident into evidence.
Generally, Evidence Code section 1109 allows the introduction into evidence of a prior act of domestic abuse in a current prosecution, to show the defendant’s propensity to commit domestic abuse. (See, e.g., People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.)
However, to be admissible, the prior act has to meet the following definition of “abuse”: “‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a); see id., subd. (b); Evid. Code, § 1109, subd. (d)(3).)
The thrust of defendant’s argument is that the evidence introduced at the hearing on the admissibility of this issue did not show that he placed his wife “in reasonable apprehension of imminent serious bodily injury” as required. We disagree.
At the hearing, the victim testified defendant drove “fast” and “recklessly” in and out of the carpool lane, passing other cars. In part, she testified as follows: “Q. My question, ma’am, while he was going in and out of the carpool lane, were you fearful that you might get in an accident? [¶] A. Yes, I was fearful.” On cross-examination, she testified as follows: “Q. At any point in time did you feel as if you were afraid for your physical self or well-being that day? [¶] A. No, not that day.”
The prosecutor argued that because the victim was back with her husband, she had a motive to minimize what happened. The trial court noted the inconsistent testimony, and found defendant’s driving caused the victim to be in reasonable apprehension of imminent serious bodily injury.
When a trial court conducts a foundational hearing, it may weigh the evidence, and we must infer whatever findings support its ruling. (People v. Williams (1997) 16 Cal.4th 153, 196; see People v. Manning (1973) 33 Cal.App.3d 586, 601-602.) Based on the victim’s direct testimony and demeanor, the trial court could rationally conclude defendant’s driving during the May 2007 incident put the victim in reasonable fear of imminent serious bodily injury. The trial court could reject the victim’s later testimony because of the victim’s bias in favor of defendant. Although the incident was mild, given the wide spectrum of domestic abuse, the trial court could find that it met the statutory definition in Penal Code section 13700.
The trial court excluded a January 2007 incident the prosecution had tendered because it did not meet the Evidence Code section 1109 standard. The parties argued whether Evidence Code section 1101 would permit the introduction into evidence of both uncharged incidents, but it is not clear whether the trial court made a ruling on that theory. Given our resolution of this appeal, we need not address it.
Defendant also contends the evidence was more prejudicial than probative, and therefore should have been excluded under Evidence Code section 352. We disagree.
“Under [Evidence Code] section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury.... We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
The evidence of the uncharged incident was neither time consuming nor confusing. It was not inflammatory in the abstract or in comparison to the charged incident. It was probative on the issue of defendant’s propensity to commit domestic abuse. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.) There is no basis to conclude the jury either would be misled on which incident defendant stood trial or would be likely to use the uncharged incident for improper purposes. In short, the trial court did not abuse its discretion.
Finally, if the evidence was not properly admitted, any error was harmless because it is not reasonably probable that its exclusion would have led to a different result. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Mullens (2004) 119 Cal.App.4th 648, 658-659 [applying Watson standard to an error under Evid. Code, § 1108]; People v. Harris (1998) 60 Cal.App.4th 727, 741 [same].) The victim’s testimony was clear and was corroborated by the observable redness and swelling on her neck and the recent bite mark on her hand. The uncharged act evidence was not inflammatory, either in the abstract or in comparison to the charged offense. Accordingly, even if the uncharged act evidence should have been excluded, either because it was too mild to meet the definition of abuse under Penal Code section 13700, or too inflammatory under Evidence Code section 352, any error was harmless.
Defendant contends that the trial court should not have instructed the jury on propensity evidence (CALCRIM No. 852) because this evidence was not properly admitted. He does not attack the instruction as such, and because we conclude the trial court properly admitted the evidence, the subsidiary instructional error claim perforce fails.
II
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. As expressed in the recent opinion in People v. Brown (2010) 182 Cal.App.4th 1354, we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant having served 20 days of presentence custody, is entitled to 20 days of conduct credits, instead of the 10 days awarded under the prior law. We modify the judgment to award defendant 20 days of actual credits and 20 days of conduct credits, for a total of 40 days of presentence credit.
DISPOSITION
The judgment is modified to award defendant 20 days of conduct credits, for a total of 40 days of presentence credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the 20 days of conduct credits. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation.
We concur: HULL, Acting P. J. ROBIE, J.