Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291199.Paul Enright. Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Mary Joe Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
In his timely appeal, appellant contends that the trial court admitted testimony relating to criminal threats charges that was more prejudicial than probative under Evidence Code section 352, and thereby violated his constitutional rights to due process and a fair trial. He also challenges his sentence on the grounds that conduct credits from his prior conviction were incorrectly calculated, and asks that, as an alternative to reversal, the case be remanded for resentencing. We affirm the convictions and remand for proper calculation of conduct credits and resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by information with sixteen felonies, and a jury found him guilty of seven of them: two counts of making criminal threats (Pen. Code § 442; counts 1, 13), one count of attempted kidnapping (§§ 664, 207, subd. (a); count 2), one count of committing corporeal injury on the mother of appellant’s child (§ 273.5, subd. (a); count 3), one count of evading a police officer (Veh. Code § 2800.2, subd. (a); count 9), and two counts of assaulting a police officer (§ 245, subd. (c); counts 11, 12). Appellant waived a jury trial on the allegation of a prior conviction of a serious felony, and on March 24, 2006 the trial court found that prior conviction true. Appellant was sentenced to 19 years and 4 months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On July 26, 2005, appellant called the home of Imelda C., appellant’s former partner, and threatened to kill her and their two children. Jairo P., appellant’s son, answered the phone and put it on speakerphone, and both Imelda and Jairo recognized appellant’s voice on the line. Appellant told Jairo that he was going to kill him and his sister because he planned to kill Imelda and did not want to leave his children without parents. When Imelda spoke up and told appellant not to say that to his son, appellant said he was glad she was listening because he was going to come kill her. After receiving threatening calls from appellant on her cell phone that evening and a couple of days later, Imelda took her children to her brother’s house, and shortly thereafter, fearful that she would be putting her brother’s family at risk by staying there, checked into a motel.
A few days later, Imelda was walking from a bus stop to her workplace when appellant drove by and then stopped his car further down the street. Imelda, upon realizing who was in the car, asked a nearby coworker to stay close to her since she was afraid appellant would hit her. Appellant got out of the car and told Imelda to get in so he could talk to her, but she refused. Appellant grabbed Imelda by her neck and pulled her towards the car while hitting her on the arm. The coworker made appellant let go of Imelda, and appellant ran to his car and drove off.
On October 1, 2005, a high speed car chase ensued after two police officers attempted to pull over appellant after observing him doing U-turns in an intersection and running several red lights. Appellant stopped briefly after colliding with a civilian’s car, but then proceeded to accelerate backwards into the stopped patrol car behind him, requiring the officer who had stepped out of the patrol car to jump out of the way. After fleeing the scene, appellant was subsequently apprehended by a secondary police unit and arrested.
A jury trial was commenced on March 6, 2006. Shortly after trial began, a 402 hearing was held in which the prosecution sought to introduce evidence that Imelda believed appellant’s threats because she knew he had previously shot into a car with people in it. Appellant’s counsel argued that this testimony would be more prejudicial than probative. Furthermore, it would be cumulative because Imelda’s fear could be established by the fact that she had been beaten by appellant in the past and characterized their relationship as violent. The court admitted the testimony, concluding that it was relevant to establish that Imelda believed appellant’s threats were genuine, and would not be overly prejudicial if the jury was instructed that the testimony should only be considered as it pertained to Imelda’s state of mind and not as an indication that the appellant “[is] a person of bad character or has a tendency to commit crimes . . . .” The court did so instruct the jury when Imelda testified in open court.
Jairo took the stand and also testified about appellant shooting into a car with people in it. Appellant’s counsel objected because that testimony had not been introduced in the 402 hearing. After excusing the jury and questioning Jairo, the court concluded that the young man’s testimony should be admitted for the same reasons that his mother’s testimony was admitted. The court again instructed the jury to consider the evidence only as it pertained to the witness’s state of mind and not to the character or tendencies of the appellant.
On March 24, 2006, appellant was sentenced to 19 years and 4 months in state prison. As the court considered the attempted kidnapping of Imelda the “gravamen” of the case, and wanted appellant to realize that it was his behavior towards Imelda that determined how long he would be going to prison, it chose that count as the principal term. The consecutive terms were computed using one-third the midterm of each count, doubled pursuant to the two strikes law, and appellant was given 5 additional years for prior conviction of a serious felony. The court awarded appellant 201 days of credit for time served (175 days actual, 26 days conduct), apparently calculated per section 2933.1, which says that no more than 15 percent of worktime (e.g., conduct) credit shall be accrued for a person convicted of a felony offense listed in section 667.5, subdivision (c).
DISCUSSION
I. ADMISSIBILITY OF EVIDENCE
Under Evidence Code section 352, a trial court may exclude evidence that is more prejudicial than probative. In the context of this code, prejudicial evidence is that which “uniquely tends to invoke an emotional bias against a party as an individual.” (People v. Samuels (2005) 36 Cal.4th 96, 124, quoting People v. Crittenden (1994) 9 Cal.4th 83, 134.) The probative value of evidence depends on how relevant, material, and necessary it is to prove a fact at issue. (People v. Thompson (1980) 27 Cal.3d 303, 318, fn.20 (Thompson).) In determining whether evidence has been erroneously included, we review the trial court’s decision under the abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 955.)
Evidence Code section 352 states: “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.”
Testimony about a previous charged or uncharged offense has great potential to be prejudicial and inflammatory. (Thompson, supra, 27 Cal.3d at p. 314.) Such testimony can lead a jury to conclude that a defendant is a person of “generally bad character” with a propensity to commit crimes. (People v. Sam (1969) 71 Cal.2d 194, 206.) Given the potentially damaging effect of this kind of evidence, it should not be admitted “[i]f the connection between the . . . offense and the ultimate fact in dispute is not clear . . . .” (Thompson, supra, 27 Cal.3d at p. 316). Although the introduction of evidence about a prior offense is proper if there is a direct relationship between that earlier offense and an element of the charged offense or fact at issue, People v. Daniels (1991) 52 Cal.3d 815, 857, it should be withheld if there is additional evidence that may be used to prove that same element or fact. (Thompson, supra, 27 Cal.3d at p. 318.)
In this case, the trial court restricted Imelda and Jairo’s testimony to the knowledge that appellant had previously shot at an occupied car, and excluded the fact that appellant was convicted and spent time in prison for his actions. Respondent contends that the evidence admitted was more probative than prejudicial because it was necessary to establish an element of the criminal threat charges: that a threat caused the person threatened “reasonably to be in sustained fear for his or her own safety . . . .” (CALJIC No. 9.94.) We find respondent’s argument unpersuasive. The testimony of a witness is sufficient for the proof of a fact. (Evid. Code § 411.) Both witnesses stated that the threats alone made them feel afraid. Imelda also testified that appellant had frequently beaten her over the course of their past relationship. When asked why she believed appellant was capable of following through with his threats, Imelda responded: “[b]ecause there was always the beatings and then the threats to us, to actually anybody that would come in front of him . . . .” Jairo testified that he felt shocked that appellant would “go back to doing the same things that he used to do.” That Imelda and Jairo received death threats from a man known for physically abusive behavior, and believed those threats because of first-hand experience of that physically abusive behavior, is sufficient to establish their fear. Therefore, although knowing that appellant had shot into a car with people had some relevance to corroborate the witnesses’ fear, the testimony was both prejudicial and cumulative and should not have been admitted under Evidence Code section 352.
Although the trial court erred in admitting the testimony, reversal is only required if it is reasonably probable that the appellant would have obtained a more favorable outcome had the erroneous testimony been excluded. (People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson (1956) 46 Cal.2d 818, 836; Evid. Code, § 353, subd. (b).) Putting aside the testimony at issue, there was substantial evidence to support the jury’s guilty verdicts. As discussed above, in addition to their own credibility, Imelda and Jairo’s testimony about appellant’s past abusive behavior provides a legitimate and believable basis for claiming they feared for their own safety. Further, the accounts of the attempted kidnapping and injury of Imelda, and the car chase and assault on the police officers, were compelling and comprehensive. Appellant argues that the erroneously admitted testimony led jurors to “conclude that appellant was a bad man who must be guilty of all the charges,” but since the jury found appellant not guilt of three of the alleged charges and deadlocked on six, it appears to have been quite capable of considering the merits of each charge. We cannot say that the jury was biased by the erroneously admitted testimony and that it is reasonably probable that its exclusion would have resulted in a more favorable verdict for appellant. Therefore, any error was harmless under Watson and does not warrant reversal.
A defendant that makes an Evidence Code section 352 objection at trial may properly raise a narrow due process argument on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435-37.) This is so because a due process claim pertaining to an objection to admission of evidence “restates, under alternative legal principles, a claim otherwise identical to [the evidence code objection] that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.” (People v. Yeoman (2003) 31 Cal.4th 93, 117.) Due process is violated, however, only if the erroneous admission of evidence made the trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.) In evaluating this constitutional claim, we determine whether the admitted testimony in the instant case was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) For the same reasons we concluded that the error was harmless under Watson, we also conclude that it was harmless under Chapman and did not render appellant’s trial fundamentally unfair.
II. SENTENCING
Firstly, the parties agree on appeal that the conduct credit portion of appellant’s sentence was incorrectly calculated. Because none of the felonies of which the appellant was convicted are “violent” as defined in section 667.5, subdivision (c), appellant’s conduct credits should have been calculated using sections 4019 and 667, subdivision (c)(5). Under the latter scheme, a 50 percent credit for actual presentence time served is applied. Appellant served 175 days actual presentence time, so he should receive 87 days of conduct credit.
Section 4019, subdivision (f) states: “It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”
Secondly, respondent asserts that the trial court should have selected counts 11 or 12 (assault on a police officer) as the principal term rather than count 2 (attempted kidnapping). Counts 11 and 12 have middle terms of 48 months, while count 2 has a middle term of 30 months. Respondent claims that section 1170.1, subdivision (a) requires that the count with the longest possible term be selected as the principal. We disagree. Trial judges may use their discretion in choosing which count to designate as the principal term. (People v. Miller (2006) 145 Cal.App.4th 206, 215-18 (Miller).)
The statute states in part: “when any person is convicted of two or more felonies . . . the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . . The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements . . . .”
A recent analysis of this section by the Sixth District is instructive. In Miller, the court held that a trial judge erroneously interpreted section 1170.1 as requiring that the longer of two aggregate sentences offered in a plea agreement be imposed. (Miller, supra, 145 Cal.App.4th at pp. 213-214.) Focusing on the plain language of the section, and in particular on the words “[t]he principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes,” the court concluded that it is the longest term the trial court chooses to impose, not the longest term available under the sentencing scheme, that becomes the principal term. (Id. at pp. 215-216.) Here, the trial court correctly used its discretion in choosing the attempted kidnapping count as the principal term.
DISPOSITION
The clerk of the superior court is directed to correct the abstract of judgment to reflect 87 days of conduct credit and forward a certified copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: RUBIN, J., FLIER, J.