Opinion
B164654.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. HARRY LOUIS SHEPHEARD, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Harry Louis Shepheard was convicted, following a jury trial, of one count of assault with a deadly weapon or by means of force likely to produce great bodily injury in violation of Penal Code[] section 245, subdivision (a)(1), and one count of home invasion robbery in violation of section 211. The trial court sentenced appellant to the high term of nine years for the robbery conviction, and stayed sentence on the assault conviction pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting statements by the victim about appellants relationship with a woman named Cecilia. Appellant also contends that the trial court awarded him too few days of custody credit. We correct appellants presentence custody credit award as set forth in our disposition, but affirm the judgment of conviction in all other respects.
Facts
On May 28, 2002, James Collins was living with his seven-year-old son in a one-room studio unit in the Huntington Hotel. At about 11:30 p.m., Collins heard knocking on his door. He asked what the person wanted, and the person replied that he was looking for Sara. Collins told the person that he had the wrong room. The knocking continued. Collins opened the door and saw appellant and three other men. Collins had seen appellant around the hotel as a visitor, and knew him as "Legacy." He told the men that they had the wrong room. Collins then started to close his door, but one of the men stuck his foot in the door. Collins heard appellant say "James," and the four men pushed the door open.
Collins tumbled back from the force of the men pushing the door, and one of the men hit him in the face. Appellant and one other man began hitting him and pushing him back toward the window. The fourth man stayed by the door, which the men had shut as they entered the room. Collins was able to get to the door and open it a couple of times to call for help, but the men pulled him back in and continued hitting him.
At some point, appellant began choking Collins, and said to him, "So you like to choke women." Collins understood this to refer to an argument he had had earlier with a female resident of the building named Cecelia, although Collins had not touched her. During the argument, which had occurred at about 3:30 p.m. that day, Collins accused Cecelias son Xavier of hitting Collinss son.
Appellant knocked or pulled Collins to the ground while continuing to choke him. One of the other men hit Collins repeatedly with a stick. Appellant asked Collins where the money was. Collins blacked out.
When Collins regained consciousness, he was alone, his apartment was "trashed," some of his belongings were missing and his son was crying. Collins took his son to a neighbors unit and went downstairs to call the police. He encountered the police when he reached the lobby.
Collins later determined that his wallet, a Sega Dreamcast game system and between 20 and 30 videogames were missing from his unit. In addition, his radio system and VCR were broken.
The next day, Collins selected appellant from a photographic line-up. He did not identify appellant on the night of the attack because his son was crying and he had just been assaulted and was confused and did not know what to do.
Discussion
1. Cecelia
Appellant contends that the trial court erred in admitting Collinss testimony that Cecelia called appellant her son, and that this error violated his right to confront his accusers, and deprived him of his right to a fair trial and to due process under the Sixth and Fourteenth Amendments of the U.S. Constitution.
Respondent contends that appellants failure to object to the statement on constitutional grounds waived his constitutional claims. (People v. Burgener (2003) 29 Cal.4th 833, 869.) We agree.
"Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Cecelias statement referring to appellant as her son was an out-of-court statement, but was not offered to prove the truth of the matter stated, that is, it was not offered to prove that appellant was Cecelias son.[] Thus, the statement was not hearsay.[]
Both appellants counsel and the prosecutor agreed that appellant was not Cecelias son.
For this reason, assuming that appellants due process and confrontation clause claims were not waived, they would fail. (People v. Burgener, supra, 4 Cal.4th at p. 869.)
Even though the statement was not hearsay, it still had to be relevant to be admissible. The court found that Cecelias statement was circumstantial evidence of the relationship between Cecelia and appellant. The court also found that this relationship was relevant to show appellants motive to assault Collins, given the disagreement between Collins and Cecelia earlier in the day and of appellants statement about Collins hurting women. Evidence of a defendants motive to commit a crime is generally relevant at trial. (See People v. Catlin (2001) 26 Cal.4th 81, 127.)
Appellant contends that the statement that Cecelia called him her son had no tendency in reason to show anything about his state of mind. We do not agree. Collinss exact testimony was that Cecelia "introduced [appellant] as her son." Thus, Cecelia made her comment in the presence of appellant. There is nothing to indicate that appellant ever corrected Cecelia or denied the relationship. This statement, when considered together with Collinss testimony that appellant was a visitor of Cecelias, does indicate a close relationship between appellant and Cecelia.
Further, even assuming for the sake of argument that evidence of Cecelias statement was erroneously introduced, we would see no prejudice to appellant. Collins had seen appellant in the hotel as a visitor on other occasions and identified him several hours after the robbery as one of the robbers.[] He explained that he did not identify appellant when police were at the hotel because his son was crying and he was "aggravated" and "confused" after being assaulted.
The possibility that Collins may initially have given the police other nicknames for appellant, such as Shorty or Smoky, does not undermine this visual identification.
2. Presentence credit
Appellant contends that the trial court erred in awarding him only 210 days of actual custody credit and 28 days of conduct credit. He contends that he is entitled to an additional nine days of actual custody credit and an additional four days of conduct credit. Respondent contends that it is not clear from the record when appellants actual custody began, and so any corrections should be made in the trial court.
The probation report and appellants counsels sentencing memorandum both show that appellant was arrested on June 24, 2002. Appellant was sentenced on January 29, 2003. Appellant was thus in custody for a total of 219 days. Appellant is entitled to nine additional days of actual custody credit, for a total of 219 days.
Appellants conduct credits are limited to 15 percent of his actual days in custody. (§§ 2933.1, 667.5, subd. (c)(9).) This amount totals 32 days.
Respondent also suggests that our decision in People v. Acosta (1996) 48 Cal.App.4th 411 is no longer good law after the Supreme Courts decision in People v. Buckhalter (2001) 26 Cal.4th 20. Respondent is mistaken. In Acosta, we held that an appellate court may modify a judgment to correct an erroneous presentence custody award rather than remand the case to the trial court solely to recalculate that award. (People v. Acosta, supra, 48 Cal.App.4th at pp. 427-428.) The Court in Buckhalter expressly limited its opinion to the "narrow issue" of "the trial courts duty to calculate custody credits upon a sentencing remand." (People v. Buckhalter, supra, 26 Cal.4th at p. 22.)
Disposition
The judgment is modified to show that appellant has 219 days of actual custody and 32 days of conduct credit, for a total of 251 days of presentence custody credits. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this modification, and to deliver a copy to the Department of Corrections. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P.J. and MOSK, J.