Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD217784 Jeffrey F. Fraser, Judge.
HUFFMAN, J.
A jury convicted Randall Lee Sheehan of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2) and making a criminal threat (§ 422; count 3). The jury also found true that Sheehan had personally used a deadly weapon in the commission of each offense. (§ 1192.7, subd. (c)(23).) In a bifurcated proceeding, the trial court accepted Sheehan's admission that he had six prison priors, which would be subject to the five-year washout period in section 667.5, subdivision (b). The court subsequently granted the prosecutor's motion to dismiss a count 1 burglary charge on which the jury had been unable to reach a verdict. The court granted Sheehan three years formal probation, conditioned in part on serving 393 days in county jail, and awarded him 393 days credit, consisting of 263 actual days and 130 section 4019 credits.
All statutory references are to the Penal Code unless otherwise specified.
It appears the trial court initially imposed an authorized sentence by committing Sheehan to the custody of the Sheriff for 365 days when it granted probation, but then changed it to 393 days to conform to the amount of credits for time he had already served. On appeal we are authorized to correct such inadvertent unauthorized sentence. (People v. Menius (1994) 25 Cal.App.4th 1290, 1295.) We therefore order the trial court to amend the order granting probation to reflect the commitment as 365 days.
Sheehan appeals, contending there was insufficient evidence to support his convictions because there was no evidence presented to prove he was not acting in the defense of another, the trial court prejudicially erred in admitting a police officer's nonresponsive answer on cross-examination and in failing to admit spontaneous pretrial statements made to the police for their truth, and the amendment to section 4019 applies retroactively to him thereby entitling him to additional good time credits. Only Sheehan's claim for additional custody credits may have merit.
FACTUAL BACKGROUND
At about 6:30 p.m. on December 13, 2008, San Diego Police Officer David McGowan and his partner responded to a call to assist with a perimeter to locate two white male suspects in downtown San Diego near 10th Avenue and C Street reported in a 911 call. When they arrived at the scene, McGowan saw other police officers in foot pursuit, heading northbound on 10th Avenue. After he and his partner parked their squad car near a Shell gas station and got out, McGowan heard faint whispering noises or "footstep-type movements" coming from the other side of a fence about 10 feet away. When he walked to the fence and peered over it, he saw a man sitting on the porch of a building below and ordered him to stand up and show his hands. After the man complied, McGowan told him that the officers were looking for robbery or burglary suspects in the area and he needed to detain him to identify or exclude him as a suspect. When the man replied that he had "been here all night, " and started to sit down where the officers could not see his hands, they drew their weapons and climbed over the wall, joining the man who they then handcuffed and confronted. The man, subsequently identified as Sheehan, protested several times that, "You have the wrong guy. I'm not the one you're looking for." Because it was dark out and the area was not very well lit, the officers moved Sheehan around to the north side of the building that was well lit. As they did so, Malek Nasirpour, the man who had made the 911 call regarding the two suspects, pointed directly at Sheehan and said, "That's him. That's the one who hit me with the bolt cutters." Nasirpour also pointed out a bicycle about six feet away from the fence and some bolt cutters "laying directly next to the bike, " saying, "those are the bolt cutters he hit me with." After separately talking with Nasirpour and Sheehan, and noting some injuries on Nasirpour's neck, McGowan took Sheehan to jail. Sheehan was subsequently charged with the crimes in this case.
Although the reporter's transcript shows that the reporting victim testified at trial that the offense occurred on September 13, 2008, such appears to be a clerical error as all other references to the date of the crime by police and Sheehan himself are to December 13, 2008.
At trial, in addition to the above evidence, the prosecution played the 911 tape of Nasirpour reporting the various crimes on December 13, 2008, and presented testimony from Nasirpour, McGowan, San Diego Police Officer Benjerwin Manansala, and a man named Anthony Lea.
Nasirpour, who lived in a four-story apartment complex with gated underground parking at 900 F Street in downtown San Diego, testified that at around 6:20 p.m. on December 13, 2008, as he was entering the parking garage, he heard loud noises, yelling and cursing coming from one area of the garage. When he walked toward the noises, he saw one man cutting a lock off a bicycle with some bolt cutters while another man was trying to open the passenger door of a car in space number 117. Because he had never seen the two men in the complex, Nasirpour observed them for a few seconds and after he saw them start to remove the bike, he approached them and asked them what they were doing. When Nasirpour asked why the man, whom he identified at trial as Sheehan, was using bolt cutters in response to his reply that he was getting his friend's bike, Sheehan told Nasirpour to "fuck off" and his friend who was next to the car also started cursing. When the men did not respond to him telling them to leave the garage, Nasirpour walked toward them because he could not get any cell phone reception to call the police and wanted to try to stop them from stealing the bike and car.
In response to Nasirpour, who was then standing a few parking spots away yelling at the men again to leave and telling them he was calling the police, the men came back toward him, Sheehan on his own bicycle and the other man running at him. Sheehan veered out of Nasirpour's way, who moved back and tripped the other man as he came directly at him. After the man got up and followed Sheehan out of the garage, Nasirpour followed them from a distance, telling them to stop on the sidewalk to wait for the police. Nasirpour kept his distance for safety reasons and also because the man with Sheehan smelled bad as it was obvious he had defecated in his pants. Once outside the garage the men started running with Sheehan carrying his bike.
As Nasirpour followed the men, yelling for them to stop, Sheehan got on his bike and rode away, and Nasirpour continued following the other man while trying to call 911. When they reached the intersection of 9th Avenue and E Street near the post office and library, the man ran in circles while Nasirpour continued to try to connect with 911 and yelled at bystanders to also call 911. The man, who did not seem rational, then again ran directly toward Nasirpour who stepped aside and again tripped him causing the man to fall to the ground. Nasirpour then heard a voice cursing behind his head and he turned to see Sheehan swinging some bolt cutters about a foot or two away from his head. As Nasirpour backed up, he heard Sheehan saying he was going to stab him and for him to "fuck off." Afraid, Nasirpour backed further away while Sheehan and his friend moved away and Nasirpour continued to follow them from a distance, giving the 911 operator the different directions they were traveling. Several blocks later as he followed the men, his call to 911 was disconnected and he called again as the men headed past Broadway toward the trolley station on C Street. At some point the men separated again and Nasirpour followed Sheehan's friend on foot, still keeping his distance.
As Nasirpour then walked around a stopped trolley to see what direction Sheehan's friend was headed, he saw him coming toward him so that they basically met at the back of the trolley. This time the man ran at Nasirpour with his fist raised. In response, Nasirpour again moved back and tripped the man as he came at him next to the trolley tracks. The man looked exhausted and did not get up after he fell to the ground. As Nasirpour was holding the man down on the ground while he had 911 on the phone and was yelling for help, he saw the bolt cutters being swung at the right side of his head and then felt them strike him on his right shoulder, which caused him to tumble or roll over the man and onto the ground. Nasirpour's neck and arm immediately hurt and as he looked up he made eye contact with Sheehan who had the bolt cutters in his hand as he started running toward his bike. Nasirpour chased after Sheehan, briefly grabbing his jacket but let go because he still had the bolt cutters and his friend had also gotten up and had joined him.
As Nasirpour followed the two men from a safe distance, he flagged down a police car that was driving toward him as he continued to follow and maintain visual contact with Sheehan and his friend going down 10th Avenue toward a Shell gas station on B Street. Nasirpour caught up to the men as they came to a construction area with Sheehan continuing on toward the gas station while his friend tried to climb over a chain link fence. As Nasirpour grabbed at the friend's pant leg, two police officers came up behind them and grabbed the man, who was then detained and identified as James Marsh. The police then had Nasirpour wait at the Shell station while several other officers apprehended Sheehan whom Nasirpour subsequently identified as the man who had threatened and hit him with the bolt cutters. Nasirpour also pointed out Sheehan's bike and the bolt cutters for the officers in addition to the injury on the right side of his neck where he had been struck by the bolt cutters. The picture taken of his injury that night was shown to the jury. Nasirpour said the injury later "swelled up, got purple and a lot bigger."
In response to questioning, Nasirpour denied ever hitting, punching, assaulting or kicking Marsh while he was on the ground after causing him to fall three times by tripping him. Nasirpour conceded he had only been struck once by Sheehan while he was barely holding Marsh down and that Marsh himself had never struck him even though he had directly run at him three times. Nasirpour explained that he had followed the men from his parking garage rather than just letting them go because he, his girlfriend and his roommate had all been victims of thefts from the garage and he hoped someone would do the same as he had done in trying to point out thieves to the police so they could be apprehended.
Anthony Lea, a resident of the apartment complex in which Nasirpour lived at the time of the crimes, testified in the prosecution case that he parked his Dodge Neon car in space number 117 in the garage with his bike key-locked to a cable in front of the car. When he moved from the complex a month later, he did not know whether the bike was still locked there as he just left it for his roommate and he had not ridden it since mid-November 2008. Lea had no knowledge that anyone tried to take his bike or break into his car on December 13, 2008 until he learned about the attempts to steal them in March 2009 when someone from the District Attorney's office contacted him via his family about this matter. Lea never saw his bicycle lock cut in any way and had not noticed anything awry with either his bike or car after the purported attempts.
In McGowan's testimony, in addition to describing the circumstances in apprehending Sheehan on December 13, 2008, he testified about his interview with Nasirpour that night, who was upset after having just chased Sheehan and Marsh, explaining that he went through Nasirpour's story several times to make sure he did not leave out any details. On cross-examination, McGowan clarified that he had gone over Nasirpour's story with him multiple times because he was not satisfied the first time as Nasirpour's thinking appeared to be skewed due to the excitement and he was bouncing around, and he (McGowan) wanted to get the details chronologically. McGowan, however, did not mention doing this in his police report. Nor did McGowan write down all the inconsistencies in Nasirpour's stories, only paraphrasing them to try to place them in chronological order. Nasirpour had not mentioned anything to McGowan about tripping Marsh during the chase. McGowan did not go back to Nasirpour's apartment to see if any property had been taken, locks broken or cars broken into as his assigned job was to take Sheehan to the police station.
Officer Manansala testified in the prosecution case that he and his partner had also been dispatched on December 13, 2008 at about 6:30 p.m., to investigate a vehicle burglary in the area of 10th Avenue and B Street. When they arrived at the area, Manansala saw two men running and a third person standing on the curb, yelling, "Police. They're running. They're going that way." As soon as Manansala got out of his car, he yelled for the men to stop and began chasing after them, as they were being pursued by the man on the curb who was also on his phone. After Manansala ran past the man on the curb, he followed the two males down B Street and then north on 10th Avenue, noticed that one had made it safely over a chain link fence at a construction site, and grabbed the legs of the other man who was halfway over the fence and pulled him off. Manansala pinned the man down and with the assistance of his partner took the man, then identified as Marsh, into custody. Manansala noticed that although Marsh did not request any medical attention and did not appear to have any injuries, his pupils were dilated, he could not sit still, he was out of breath, he was sweating profusely and he had defecated on himself. Based on his training and experience, Manansala opined that Marsh was under the influence of crystal methamphetamine at the time he was contacted.
On cross-examination, Manansala conceded that Marsh had made a statement to him that "he was kicked in the leg several times and 'hit me in the stomach so hard that I shit myself.' " Marsh, however, did not specify who had kicked or hit him, only saying "some guy." The trial court admonished the jury that Marsh's statement to Manansala was not being offered for the truth that Marsh was kicked or hit in the stomach, but only to show his mental state regarding his own physical condition.
The Defense Case
Sheehan, who was 50 years old at the time of trial, testified in his own defense about the events on December 13, 2008. Marsh had approached him at about 4:00 p.m. that day at his downtown San Diego hotel while he was working on his bicycle and asked to borrow his cable cutters to snip the lock to a bicycle for his friend who had lost the key. Not wanting to lend him his new cable cutters, Sheehan later accompanied Marsh to a nearby apartment garage where the friend's bike was located and walked in through the area that was open to the public. As they walked around the garage trying to find the friend's bike, Sheehan kept talking loudly, asking Marsh where the bike was because he did not want "to be tricked into stealing a bike." It was at that time they were confronted by a man, later identified as Nasirpour, who demanded to know what they were doing there, and who ordered them out of the garage, threatening to break their jaws if they did not leave.
Because Sheehan became angry with Marsh, who seemed confused when asked about where his friend was that owned the bike, and also angry with Nasirpour telling him "where [he] can and can't go, " he told Nasirpour to mind his own business and cursed at him. When Nasirpour cursed back at him, Sheehan knew there was trouble and took his bike and walked on one side of Nasirpour while Marsh walked on the other side. Sheehan then saw Marsh and Nasirpour exchanging words and punching motions, and saw Nasirpour kick Marsh three times and trip him until Marsh fell to the ground where he continued to kick him. Sheehan intervened holding his bike between them and telling Nasirpour they were leaving. Sheehan denied he had cut any bicycle cable lock in the garage.
When he left the garage with Marsh, Nasirpour slowly followed behind them at a distance and when they got outside, he ran toward them. Then in the middle of an intersection near the library, Nasirpour started kicking Marsh repeatedly until he again fell to the ground. Sheehan again intervened, telling Nasirpour to get off of his friend. As he did so, Nasirpour got up and pointed to his phone, threatening to stab Sheehan. Sheehan denied he ever threatened Nasirpour or that he had his bolt cutters in his hand at the time, claiming they were always in his back pocket until he got back to the area of his hotel. After helping Marsh up, the two "split."
When Sheehan reached his hotel, parked his bike and set his bolt cutters down, he walked back a block and saw Marsh and Nasirpour fighting again in the middle of the street near the trolley tracks. As he approached the men, he saw Nasirpour on top of Marsh looking as if he were about to strike him, so Sheehan pushed Nasirpour off Marsh causing him to tumble twice. Sheehan then told Marsh, "let's get out of here, " and they ran away. Sheehan denied hearing the police order him to stop and when the police later contacted him, he told them that they, "had the wrong guy, " and that he had been at the hotel all night. Sheehan explained that he had been at the hotel all day until that half hour when he had gone with Marsh to the apartment garage. He conceded he had previously been convicted of theft related felonies in 1995, 1997 and 2006.
On cross-examination, Sheehan claimed that when Nasirpour confronted him in the apartment garage he could smell the odor of alcohol on his breath. He also claimed that it was Nasirpour who initiated the fight with Marsh in the middle of the intersection by the library and that Marsh had only acted to defend himself. Sheehan did not know why Nasirpour followed them from the garage and denied he had told him and Marsh to stop and wait for the police as they left the apartment complex. Sheehan was positive he had never waved his bolt cutters at Nasirpour or hit him with them. Sheehan reluctantly admitted, however, that he had lied when he told McGowan he was not the person the police were looking for and that he had been at the hotel all night. Sheehan acknowledged that at no time did he tell McGowan he had been attacked by Nasirpour during their encounters that night.
In closing, Sheehan's counsel argued there was no burglary because the bike lock and cable securing Lea's bike were never cut and there was no showing of Sheehan's intent to steal that bike. Counsel further argued that Sheehan was not guilty of assault with a deadly weapon because Sheehan had acted in the lawful defense of his friend Marsh whom he reasonably believed was in imminent danger when Nasirpour attacked him. Defense counsel also asserted Sheehan was not guilty of making a criminal threat because Sheehan had never threatened to stab Nasirpour, and even if it were found that he had done so, Sheehan made the threat in defense of Marsh.
With regard to Sheehan's claim of defense of Marsh, the prosecutor argued it was not supported by the evidence because the only reasonable interpretation of the facts was that Nasirpour had not attacked Marsh, only tripping him when Marsh charged him, and that Sheehan's actions were not intended to protect or defend Marsh but rather were intended to secure Marsh's escape and keep from being implicated in crime.
The jury could not reach a verdict on the burglary count, but found Sheehan guilty of assaulting Nasirpour with a deadly weapon and of making criminal threats to stab Nasirpour. In doing so, the jury rejected Sheehan's defense that he had acted lawfully in defense of Marsh.
DISCUSSION
I
SUFFICIENCY OF EVIDENCE
Sheehan claims the evidence was insufficient to support his convictions for assault with a deadly weapon and making a criminal threat because there was insufficient evidence to prove he did not act in defense of Marsh when he threatened Nasirpour or when he pushed Nasirpour off of Marsh. He additionally contends there was insufficient evidence to show that any criminal threat he made was unconditional and imminent. We disagree.
In reviewing a challenge to the sufficiency of evidence, we " 'consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citation.] We consider whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Romero (2006) 140 Cal.App.4th 15, 18.) This same standard applies when a conviction or finding rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) In making this determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict, " we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
With this standard in mind, we address Sheehan's challenges to the sufficiency of the evidence in reverse order.
A. Making Criminal Threats
In order to convict Sheehan of making criminal threats in violation of section 422, the prosecution was required to prove that:
"1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to... Nasirpour; [¶] 2. The defendant made the threat orally; [¶] 3. The defendant intended that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to... Nasirpour a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused... Nasirpour to be in sustained fear for his own safety; [¶] AND [¶] 6.... Nasirpour's fear was reasonable under the circumstances." (CALCRIM No. 1300.)
Aside from his defense of others argument, Sheehan challenges only the sufficiency of the fourth element for proving a criminal threat, claiming there was no evidence to prove his statements he was going to stab Nasirpour and to "fuck off" were other than conditional and not imminent. However, because a determination of whether a defendant's "words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone" (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340), the jury in this case was free to interpret Sheehan's words to Nasirpour from all the surrounding circumstances. (Id. at p. 1341.) The record shows that Sheehan not only verbally threatened to stab Nasirpour, he was swinging the bolt cutters at Nasirpour's head at the time of the threat and only missed hitting him because Nasirpour moved out of the way. The jury could reasonably infer from this evidence that Sheehan, who was visibly armed with a deadly weapon, i.e., the bolt cutters, immediately intended to carry out his seemingly unconditional threat to harm Nasirpour. Moreover, a short time later Sheehan apparently acted on his intention to harm Nasirpour by actually striking him with the bolt cutters causing Nasirpour pain in his neck and arm. Based on the totality of the circumstances, the jury could have reasonably found Sheehan's words and actions were sufficiently unequivocal, unconditional, immediate and specific to convey to Nasirpour a gravity of purpose and immediate prospect of serious bodily injury to support the imminent, unconditional threat element for a section 422 conviction. (See People v. Bolin (1998) 18 Cal.4th 297, 340; People v. Dias (1997) 52 Cal.App.4th 46, 49, 52-53.)
Contrary to Sheehan's denials and arguments otherwise, the jury was entitled to believe Nasirpour's testimony that Sheehan's actions as well as verbal threats caused him to be in sustained fear for his own safety and that his fear was reasonable under the circumstances. (See People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Consequently, we conclude there is sufficient evidence to support the jury's implied finding that Sheehan unconditionally threatened Nasirpour within the meaning of section 422.
B. Defense of Others Regarding Criminal Threats and Assault With a Deadly Weapon
Additionally, Sheehan's arguments there was insufficient evidence to prove he "did not act in defense of Marsh when he threatened Nasirpour" or when he struck Nasirpour on the shoulder as he held Marsh on the ground are meritless.
Essentially, Sheehan is arguing that neither of his convictions can stand because the prosecution failed to present evidence beyond a reasonable doubt that he did not act in defense of Marsh, which he claims was proven and was a complete defense to both charges. Other than the one element of his criminal threat conviction that he challenged above, Sheehan does not claim any other elements of that offense or of his assault with a deadly weapon offense are not supported by the evidence. Rather, he simply argues his version of the facts prove he acted in defense of Marsh for both offenses and the prosecutor failed to prove otherwise. What Sheehan fails to appreciate, however, is that the jury determined such credibility issue against him and there was ample evidence presented to prove he did not commit the charged crimes in the defense of Marsh.
Here, the jury heard testimony from both Nasirpour and Sheehan who gave conflicting stories regarding the events on December 13, 2008. The prosecutor also presented evidence of the 911 call from Nasirpour and testimony from McGowan regarding Nasirpour's statements of the events, including his version of his chase after Sheehan and Marsh. The jury was then fully and correctly instructed on the elements of each charged offense, on lesser offenses to the assault charge, and on Sheehan's claim of defense of another. Subsequently, both his trial counsel and the prosecutor thoroughly addressed the issue of Sheehan's claimed defense of Marsh in closing statements to the jury. The prosecutor argued the claimed defense was not a reasonable interpretation of the facts in this case based on Nasirpour's unequivocal testimony he did not kick, hit or attack Marsh before Sheehan threatened or struck him with the bolt cutters. In addition, Nasirpour's testimony was corroborated by his statements to the police that he did not attack Marsh but only tripped him when Marsh came at him and that he barely held him down so the police could apprehend him, which would not justify the use of deadly force. Defense counsel argued that Sheehan's testimony proved he reasonably believed Nasirpour was attacking Marsh at the time he made the threats and when he later struck Nasirpour as he was holding Marsh down. Each counsel also pointed out inconsistencies in the testimony of the other's main witness and the prosecutor stressed that Sheehan had admitted he had lied to the police that night. The jury apparently believed Nasirpour and the police and disbelieved Sheehan.
The trial court instructed the jurors with CALCRIM No. 3470, which told them that "Defense of another is a defense to assault with a deadly weapon, the two lesser included offenses, and making a criminal threat. The defendant is not guilty of those crimes if he uses force against the other person in lawful defense of another. The defendant acted in lawful defense of another if: [¶] 1. The defendant reasonably believed that James Marsh was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to someone else. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful defense of another. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶ ]A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself, and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful defense of another. If the People have not met this burden, you must find the defendant not guilty of assault with a deadly weapon and making a terrorist threat."
In sum, we will not reweigh the evidence or redetermine credibility as Sheehan would have us do. Because a rational jury could have believed Nasirpour's version that Sheehan had assaulted and threatened him without legal justification, sufficient evidence supports Sheehan's convictions.
II
ADMISSIBILITY OF EVIDENCE
Sheehan next contends the trial court prejudicially abused its discretion when it admitted McGowan's nonresponsive answers on cross-examination and also when it failed to admit Marsh's hearsay comments to police as a spontaneous statement that he had defecated in his pants after being hit by the alleged victim. No prejudicial evidentiary error is shown in either ruling.
A. McGowan's Answer
During cross-examination of McGowan, defense counsel repeatedly asked the officer about questioning Nasirpour multiple times to try to get a chronological statement with details of the events on December 13, 2008. After establishing that some events Nasirpour had testified about at trial had not been reported to McGowan by Nasirpour that night and having McGowan again acknowledge that Nasirpour had been inconsistent with the sequence of the events, defense counsel on recross-examination asked McGowan, "Wouldn't you agree with me that, when you're taking a statement from a witness to an alleged crime, it is important to note the different inconsistent statements they may be making about the sequence of events as they say it transpired?"
When McGowan replied, "I think the -- I don't understand what you're getting at, sir. When I was taking his --, " defense counsel cut him off, saying, "Let me try it this way." Before counsel rephrased the question, the court told McGowan to "[g]o ahead, " and asked him if he wanted to finish his statement. When McGowan said he would "like to make a statement, " the court told him to "go ahead [and f]inish your answer." When defense counsel said he did not want McGowan to make a statement, the court told counsel there were "[n]o speaking objections, first of all. He didn't finish his answer, " and then told McGowan to finish his answer over defense counsel's comment that he had finished his answer.
McGowan then stated, "[w]hile we're investigating a crime the most important details, the things that we absolutely cannot get wrong, are whether or not a crime has been committed. To identify that crime and to determine whether or not the crime was committed and who committed it and who the victim is, those are the important details." When McGowan started his next sentence, defense counsel again interrupted, saying, "Your honor, none of this is responsive." The court told McGowan to "[g]o ahead and finish [his] answer." McGowan then continued, stating "[w]hen taking a statement, those are the most important details. As far as someone being excited and saying, 'Well, this is what had happened. I think I did this, and then I did that, ' it's a little less important than this crime was committed; 'I was a victim of it, and this is the person who did it.' Those are extremely important details that we make sure we get correct."
In response to further questions by defense counsel, McGowan conceded he had not put anywhere in his report that Nasirpour had made inconsistent statements about the chronology of events and that Nasirpour had been "all over the place about when and where things happened [that night]." After further recross and redirect, the court excused McGowan and took the evening recess. Outside the jurors' presence, defense counsel put on the record the fact that he and the court had "been kind of getting into it a little bit, saying speaking objections."
Counsel then explained that he thought "when a witness answers a yes-or-no question no and then starts to basically ramble on to try and explain something, that is clearly nonresponsive." Counsel continued, "[a]nd if an officer answers a yes-or-no question and then basically asks to give a statement, I think it was a grievous error to allow that officer just to make a statement that wasn't associated with my question. I think to some degree the court should limit nonresponsive questions which goes into somebody's motivation, speculation. [¶] And, frankly, it led to some confusion -- frustration on my part. And, so, ... when I pipe up, it's not that I'm making a new objection. Just frankly saying that this witness is clearly making a nonresponsive statement. And I feel like the court has been letting these witnesses get away with things that, frankly, aren't appropriate."
The court responded that although it did not want to frustrate defense counsel, it had observed counsel frequently interrupting witnesses and stopping them from completing their answers, and it was for the court to decide and rule on whether an answer was nonresponsive, not counsel. The trial judge explained that because he oftentimes needed to hear the answer before he could rule on whether it was nonresponsive, he generally allowed witnesses to answer questions. Then, "[i]f at the end of their [answer] it's nonresponsive, make the appropriate objection, and I will strike it from the record and admonish the jury. But I don't like it when lawyers simply insert their own objection by stopping the witness, which [defense counsel] did."
Counsel then expressed his disagreement with the court's procedure, arguing it would be for the prosecutor to ask for an explanation when a witness has already answered yes or no and then continued to explain an answer. In this case, counsel believed he had gotten "a yes-or-no answer out of the officer. Then he started to go beyond answering that question. I interrupted him, and then he said he wanted to make a statement. And the court allowed that. I respectfully disagree with the court's analysis that that's appropriate. [H]is answer was nonresponsive after he answered it, and that's the cause of my frustration. Again, the record will speak for itself."
On appeal, Sheehan contends the trial court abused its discretion when it overruled his trial counsel's objections to McGowan's nonresponsive answers and did not strike the officer's lengthy statement made in response to counsel's cross-examination question regarding his conduct in preparing the police report in this case. Sheehan asserts his counsel's question only required a yes or no answer and that the court in permitting McGowan to "make a statement" in response to such question undermined counsel's ability to effectively cross-examine and impeach Nasirpour and McGowan.
Aside from the fact we generally do not review on appeal issues relating to the admissibility of evidence in the absence of a specific and timely objection in the trial court on the ground raised on appeal (Evid. Code, § 353, subd. (a)), no abuse of the trial court's discretion in permitting McGowan to complete his answer is shown on this record.
Contrary to Sheehan's arguments on appeal, the record reveals that his trial counsel did not at any time ask the court to strike McGowan's answer as nonresponsive. Nor does the record show that McGowan had already answered the question before "making" his statement in response to the court permitting him to finish his answer as Sheehan claims. Although Sheehan's counsel certainly expressed his disagreement with the court's stated procedure of allowing a witness to answer an interrupted response before the court would consider a specific and timely made objection to the answer, counsel did not then make a specific objection or request that the court strike what he considered to be an unresponsive answer. Counsel merely made comments on the record as to what he perceived had happened in court during his cross-examination of McGowan. As he then said, the record speaks for itself.
Moreover, as the People note in their respondent's brief, "a trial court has broad discretion as well as a statutory duty to control all proceedings before it, including admission of evidence and argument of counsel, with an eye toward an 'expeditious and effective ascertainment of the truth.' " (§ 1044; People v. Sturm (2006) 37 Cal.4th 1218, 1237.) The court in permitting McGowan to complete his answer to a poorly phrased, somewhat argumentative question by defense counsel as to whether the officer agreed with counsel's premise as to an officer's responsibilities when recording a witness's statements was well within its discretion and authority under section 1044. On this record, Sheehan cannot show evidentiary error regarding McGowan's so-called statement.
B. Marsh's Hearsay Statement
When defense counsel asked Officer Manansala on cross-examination if Marsh had complained to him "that he had been hit in the stomach so hard he shit himself, " the court sustained the prosecutor's hearsay objection, but immediately took a sidebar conference in chambers regarding the matter. When the court asked what the statement was being used for, whether a hearsay or nonhearsay purpose, defense counsel argued that the prosecutor had opened the door for the statement by asking Manansala whether Marsh had complained of pain or being injured and he said no. In response to the court's further inquiry as to whether counsel was trying to introduce the statement to show that the victim hit Marsh in the stomach, counsel explained that he was introducing it to impeach the statement that Marsh did not complain of pain or did not ask for medical attention. Counsel thought the prosecutor's question opened the door and was leaving a false impression with the jury that there was never any complaint of any injury when Marsh had said "he kicked me so hard that I shit myself."
When the prosecutor disagreed, saying it was her objective to only show that the officer had not seen any injury on Marsh and that Marsh had not requested any medical attention, the court ruled it would allow the statement for a limited purpose. In so ruling, the trial judge stated:
"[T]he whole purpose of a jury trial is to find the truth. And if that's what [Marsh] said, that's what he said. I'm more concerned about... hearsay and it being offered for the truth. I think what I'm going to do is I'm going to allow the question. [B]asically, it shouldn't be offered for the truth that he got kicked, but to show what was going on at the time, in terms of his mental state. So I'll go ahead and I'll allow it in, with the admonishment it's not for the truth. Because we can't go back and say whether or not he kicked him. We can say what he told the cop. We don't know if that's true or not."
The trial judge then explained that the statement would be used to show Marsh's mental state "[t]hat he's in pain. That's why he defecated on himself. That's the purpose. Not to show that he actually got hit, but... the cop comes across him, he's defecated on himself. There's a, 'I got kicked, ' to explain why he is in that soiled condition, as opposed to that the guy actually hit him."
When defense counsel impliedly agreed with the court, noting that there was "[a]lso, the impression that it may be related to [Marsh's] drug use or something", the trial judge reiterated that the trial was a "truth-finding process. We're here to give the jurors information about what happened at the scene. It's not a game playing.... So I'll go ahead and allow the question with the admonishment."
When the prosecutor then raised a question as to Marsh's other statements about "this guy started beating him, " the court said it assumed those other statements were hearsay to show there had been a beating and the real issue would be "that it's not subject to cross-examination. And, essentially, you're getting Marsh's statement in through the cop." The court would not go down that road but would only introduce the last statement for a nonhearsay purpose and admonish the jury.
Defense counsel said, "[t]hat's fine, " but then asked whether he could ask Manansala about other statements Marsh had made related to the physical injury, so that it would be, "[h]e kicked me in the leg several times and hit me in the stomach so hard I shit myself." When the trial judge ruled he would allow that in "not for the truth -- i.e., that he kicked him -- but to explain his defecation and all that, " counsel said he would not "go into anything else, then, other than that one line."
Back in front of the jury, Sheehan's trial counsel then asked Manansala whether Marsh in fact had made a statement to him "that he was kicked in the leg several times and 'hit me in the stomach so hard I shit myself.' " In response to further questions, Manansala clarified that when Marsh made the statement he had not referred to Nasirpour, but only to "some guy." The court then admonished the jury that the statement Marsh was kicked or hit in the stomach was not being offered for the truth, but "[j]ust to show what his mental state was regarding his own physical condition."
On appeal, Sheehan contends his convictions should be reversed because the trial court prejudicially erred by limiting the jury's consideration of Marsh's statement to Manansala that he was hit in the stomach which caused him to soil his pants. Sheehan argues that the statement qualified as a spontaneous statement, which should have been admitted for its truth that he was hit by Nasirpour because it "narrated, described, and explained a chase that resulted in physical confrontations at three different locations" and the court's limitation of the statement to being considered only as to Marsh's state of mind regarding his physical condition denied him evidence in support of his defense. Sheehan asserts that prejudice is shown by the jury's questions during deliberations regarding the instructions on self-defense and the defense of another.
We need not address these arguments on appeal, however, because the record shows that Sheehan's counsel did not advance at trial the theory of spontaneous statements for the admission of Marsh's statement regarding his physical condition in response to the prosecutor's hearsay objection to those statements and he also accepted the trial court's resolution of the matter without specific objection. Consequently, Sheehan has forfeited his right to raise this issue on appeal. (Evid. Code, § 353, subd. (a).)
III
SECTION 4019 CONDUCT CREDITS
At the time of Sheehan's sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence behavior credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, p. 595, amended by Stats. 1978, ch. 1218, § 1, p. 3941, & Stats. 1982, ch. 1234, § 7, p. 4553.) The January 25, 2010 amendments to section 4019 allowed certain defendants to earn up to two days of presentence behavior credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010.) Specifically, for qualified individuals, subdivision (f) of the 2010 version of section 4019 provided that "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." The 2010 version of section 4019 excluded those persons who were "required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), w[ere] committed for a serious felony, as defined in Section 1192.7, or ha[d] a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5" from being eligible to receive the additional conduct credits. Such individuals could earn only two days for every six-day period of confinement, so that "six days will be deemed to have been served for every four days spent in actual custody." (Amended § 4019, subds. (b)(2), (c)(2) & (f); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010.)
The Legislature amended section 4019 again, effective September 28, 2010, to essentially return the provision to its pre-January 25, 2010 version, i.e., providing for only two days of conduct credit for each six-day period of confinement. (§ 4019, subds. (b), (c), and (f), as amended by Stats. 2010, ch. 426, § 2.) Subdivision (g) of the September 28, 2010 amendments provides: "The changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act [i.e., September 28, 2010]." (§ 4019, subd. (g), as amended by Stats. 2010, ch. 426, § 2, italics added.)
Sheehan contends he is entitled to additional presentence conduct credits under the 2010 version of section 4019, which, he asserts, applies retroactively to him because the judgment in this case is not yet final. The People counter that the 2010 version of section 4019 does not apply to Sheehan because the general presumption of prospective application embodied in section 3, that Penal Code statutes are not retroactive "unless expressly so declared, " has not been rebutted and it is unclear the Legislature intended the 2010 version of section 4019 to apply retroactively.
Currently, the appellate courts are split on the issue of whether the section 4019 amendments that took effect on January 25, 2010, apply retroactively to a defendant like Sheehan, whose sentence was imposed before that date, but whose underlying conviction was not yet final. While some appellate court decisions have held that amended section 4019 applies retroactively under the holding in In re Estrada (1965) 63 Cal.2d 740 (Estrada), because the amendments mitigate punishment, other decisions have relied on section 3 to hold that amended section 4019 does not apply retroactively because the Legislature did not indicate that it intended the amendments to so apply. Our Supreme Court is presently reviewing the issue. (See People v. Brown, review granted June 9, 2010, S181963; People v. Rodriguez, review granted June 9, 2010, S181808.) Although the resolution of this issue is thus not clear, and we await further guidance on it from our high court, until that court may hold otherwise, we follow the more persuasive cases that hold the January 25, 2010 amendments to section 4019 should apply retroactively because they effectively mitigate punishment.
Those cases rely principally on Estrada, supra, 63 Cal.2d at page 745, in which our Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The court in Estrada stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.) Thus in those cases, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)
Courts that have followed the Estrada rule with regard to statutes that increase the amount of custody and conduct credits that a qualifying defendant may accrue, have generally interpreted those statutes as mitigating punishment and applied them retroactively to judgments not yet final. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237, 239 (Doganiere) [conduct credits under former version of § 4019]; People v. Hunter (1977) 68 Cal.App.3d 389, 392 [custody credits under § 2900.5].) Because the January 25, 2010 amendments to section 4019 effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits, and thus constituted a reduction in punishment for those less serious offenders who have demonstrated good behavior while in custody, the same rationale applies as in the cases following the Estrada retroactivity rule.
Moreover, because the Legislature was presumably aware of Doganiere, supra, 86 Cal.App.3d 237, and the Estrada rule when it amended section 4019 to take effect on January 25, 2010 and took no action to expressly provide that those amendments would apply prospectively only as it knows how to do as evidenced by the September 28, 2010 amendment to section 4019 (see fn. 5, ante), we can infer the Legislature approved of the Estrada exception to the earlier amendments that mitigated punishment.
To the extent the People rely on In re Stinnette (1979) 94 Cal.App.3d 800, 804-805 (Stinnette) to support the presumption of prospective application of conduct credits based on what they characterize as the Legislature's unclear, dual purpose for enacting the January 25, 2010 amendments to section 4019, such reliance is misplaced. Not only did Stinnette, which concerned the application of prison good conduct credits under amendments to sections 2930 and 2931, include a specific prospective application provision for those amendments (Stinnette, supra, at pp. 804-805, fn. 3), the express purpose of the 2010 amendments to section 4019 was to address the fiscal emergency declared by the Governor. (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28X, § 62.) Applying amended section 4019 retroactively, as well as prospectively, would serve this legislative goal by lowering prison costs through earlier release of more prisoners, thereby providing the State with greater prison cost savings.
In addition, the People fail to appreciate that the Legislature in enacting the January 2010 amendments to section 4019 did not express any purpose to provide further incentives for good behavior other than those that already existed in the statute, and that even if it did so and the amended section 4019 were to be applied prospectively, such would nevertheless provide additional credits for past behavior, since a prisoner sentenced shortly after January 25, 2010 would be granted the enhanced benefits, notwithstanding the fact that some or much of his or her presentence custody occurred before the effective date of that legislation, and, therefore, at a time when the additional incentives were not in place.
Accordingly, we conclude that pursuant to Estrada, supra, 63 Cal.2d 740, the 2010 version of section 4019 applies retroactively to this case. However, that does not end the inquiry. Because the issue of whether Sheehan qualifies as a defendant entitled to additional credits under the January 25, 2010 amendments to section 4019 was not presented to the sentencing judge and the parties have not addressed his qualifications for those credits on appeal, we remand the matter to the trial court for a determination of any additional presentence credits to which Sheehan may be entitled.
DISPOSITION
The judgment is reversed to the extent that it fails to determine whether Sheehan is entitled to presentence custody credits under the amended version of section 4019. In all other respects, the judgment is affirmed. The matter is remanded to the trial court for a determination of any additional presentence credits to which Sheehan may be entitled pursuant to this opinion.
I CONCUR: HALLER, J.
BENKE, J., concurring and dissenting.
I do not agree with the majority that Randall Lee Sheehan is entitled to presentence credits pursuant to the version of Penal Code section 4019 in effect at the time of his sentencing.
All further statutory references are to the Penal Code unless otherwise specified.
My colleagues conclude that Sheehan is entitled to credits existing between January 25, 2010, and September 28, 2010, because in their view, the legislative changes applicable in section 4019 reduce Sheehan's punishment. The basis for the majority's conclusion is language from In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada): "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply."
The majority concludes that because his conviction is not yet final, Sheehan is entitled to application of what it phrases as the general rule of Estrada. Under this rule, if the legislative intent regarding retroactive application of lessened punishment is unclear, the principle noted in Estrada controls, even in the presence of the rule of construction contained in section 3 which mandates prospective application of the law in the absence of express language of retroactivity.
My view of Estrada, and the direction it gives, is somewhat different from that of my colleagues.
I start by observing that the inference relied upon by my colleagues is not a rule, as is suggested by the majority. As the court in Estrada expressly states, it is an inevitable inference the Legislature intended to apply to every case in which it could apply. Respectfully, there is a significant difference between a rule and an inference. A rule denotes a principle that governs. An inference on the other hand merely suggests.
I view the inference noted in Estrada as a factor the court considered in applying the rule Estrada actually pronounces: "Where the Legislature has not set forth in so many words what it intended, the rule of construction [section 3] should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (Estrada, supra, 63 Cal.2d at p. 746.)
In Estrada the question was whether the defendant was entitled to an earlier parole date because of changes to section 3044. The court in Estrada found that in addition to the inference noted above, there were additional factors sufficient to support a conclusion the Legislature intended retroactive application of the changes to section 3044.
In short, using that court's own terminology, Estrada did not require the inference of legislative intent be followed blindly in the face of other factors pointing to a different conclusion. Rather, the inference noted in Estrada was but one consideration in addition to other facts and circumstances. Viewed in this way, Estrada does not pit the legislative inference against the rule of construction found in section 3, rather it places them in harmony with each other.
Accepting that the language relied upon by my colleagues is not a rule, but rather an inference and factor to consider in reaching any conclusion with respect to legislative intent, we are in any given case led to at least three options. The first is that examining all factors and circumstances, legislative intent can be ascertained, in which case, like the situation in Estrada, that intent must be carried out. The second is that the totality of facts and circumstances may point to a conclusion that despite the inference, the Legislature intended the new and lesser punishment not be applied to non-final cases. Lastly, as Estrada instructs, if after examining all facts and circumstances, which would include the inference, intent still cannot be ascertained, we must adopt the presumption of prospective application embodied in section 3. (Estrada, supra, 63 Cal.2d at p. 746; see also People v. Alford (2007) 42 Cal.4th 749, 753-754.)
It would serve little purpose here repeating the various views and supporting arguments respecting section 4019 which are contained in existing cases. There have been multiple legislative changes in the credits awarded in section 4019. The changes are arguably related not only to policies underlying the awarding of credits in general, but the awarding of credits as they relate to budget matters, and specific categories of criminal offenders. As my colleagues state, at this point the law is far from clear.
I fully understand the compulsion to discern legislative intent and apply it wherever possible. However, at this point in time, given the absence of clarity or confident direction from the Legislature, I believe Estrada itself compels a conclusion that section 3 controls and therefore the changes to section 4019 should not be held retroactive. I therefore see no need to remand the case for a determination of additional credits.
My views are not altered by the majority's reliance on People v. Doganiere (1978) 86 Cal.App.3d 237 or People v. Hunter (1977) 68 Cal.App.3d 389, 392. Those cases are inconsistent with the Supreme Court's decisions expressly characterizing conduct credit as rehabilitative rather than sentence-reducing. (See People v. Brown (2004) 33 Cal.4th 382, 405; People v. Saffell (1979) 25 Cal.3d 223, 233; also see People v. Sage (1980) 26 Cal.3d 498, 510, concurring and dissenting opinion of J. Clark.)
In all other respects I agree with the majority opinion.
In this opinion we refer to the version of section 4019 that was in effect from January 25 to September 28, 2010 as the 2010 version of section 4019.