Opinion
B231763
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH KEITH WELLS, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA069071)
APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Brandlin, Judge. Affirmed.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
On September 11, 2007, the Los Angeles District Attorney filed a one-count information charging defendant and appellant Joseph Keith Wells with possession of a deadly weapon. (Pen. Code, § 12020, subd. (a)(1).) It was further alleged that defendant served two prior prison terms pursuant to Penal Code section 667.5, subdivision (b).
Defendant pled no contest to the charge. The trial court placed defendant on three years of formal probation. On the prosecution's motion, pursuant to the plea settlement agreement, the prior prison term allegations were dismissed.
On March 28, 2008, on the probation department's recommendation, the trial court revoked probation. Following a supplemental probation report recommending reinstatement of probation, the trial court reinstated probation.
On December 18, 2009, the probation department filed a notice of violation of probation. The trial court revoked probation. Following a probation violation hearing, the trial court found defendant not in violation and reinstated probation.
On December 1, 2010, the probation department filed a report stating that defendant had failed to comply with his financial obligation. The trial court revoked probation. On February 10, 2011, the trial court continued the probation violation matter to be heard with a new case that was charged against defendant.
On February 22, 2011, the prosecutor dismissed the open case and sought to proceed to the probation violation hearing based on defendant's conduct in that case. Following a probation violation hearing, the trial court found defendant in violation.
The trial court terminated probation and sentenced defendant to two years in state prison. Defendant timely appealed, arguing that the trial court erred in admitting evidence pursuant to Evidence Code sections 1101 and 1109.
All further statutory references are to the Evidence Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
I. Prosecution's Evidence
A. Lesa Wells (Lesa) Incident on November 11, 2010
On November 11, 2010, Lesa (defendant's sister) was at home with her mother when defendant came over. He asked Lesa if she knew that their younger brother was in jail. When she replied "Yeah," defendant said "Now I'm running this shit," and slapped her face. He appeared "very agitated" and high on drugs. Lesa fell back and "flew to the side." When Lesa jumped up and tried to call 911, defendant put her in a "full nelson" and took the phone away. Defendant released Lesa after their mother jumped on defendant. Lesa felt lightheaded and her mother fell on the floor. Lesa called 911 and described the incident. The incident followed an ongoing argument in the family over managing properties belonging to the mother.
B. Other Crimes Evidence
At around 11:45 a.m. on October 6, 2009, Lorraine Crump (Crump), also defendant's sister, was visiting her mother at her house when defendant came over. While Crump was talking to her mother, defendant attempted to converse with Crump; Crump ignored him. After a while, he said, "'You owe me money, too. And I need to whoop your ass.'" When Crump replied, "'You gotta bring it to get it,'" defendant stepped up to her and began hitting her with his fist. She was hit in the head, shoulder, and arm. After he stopped, defendant left. Crump went to her car and called the police. When the police arrived, Crump reported the incident and went to the hospital. The parties stipulated that Los Angeles County sheriff's deputy Gabriella Bidrio did not see any injuries on Crump and that Crump said that she did not need any medical attention.
II. Defendant's Evidence
Defendant testified that he performed maintenance work on his mother's properties. He and Lesa had an ongoing argument about their mother's finances. On November 11, 2010, he went to his mother's house when Lesa "started talking head." She accused him of not doing anything and said that he was not welcome at the house. When defendant asked his mother for money she owed him, Lesa said that he had not given their mother any money. Defendant called Lease "a 'b' word" and told her not to get involved. Defendant never hit her or put her in a full nelson.
Before October 2009, defendant and Crump had gone to trial in a civil matter involving their mother's finances. On October 6, 2009, he and Crump had an argument, but he never hit her. He did not have a good relationship with anyone except his mother.
DISCUSSION
I. Procedural Background
At the probation violation hearing, when the prosecutor informed the trial court that she had two witnesses, Lesa and Crump, defense counsel objected, stating that he had only been told that Crump's testimony would be used as evidence pursuant to sections 1101, subdivision (b), or 1109, not as part of the underlying probation violation.
The prosecutor explained that while she had intended to use only the November 11, 2010, conduct as the basis for the probation violation, the October 6, 2009, conduct, which she intended to use as section 1109 evidence, could be a basis for the probation violation as well. After more discussion and after the witnesses testified, the trial court confirmed that Crump's testimony was not being offered as an independent basis for a probation violation but as section 1101, subdivision (b), evidence.
Ultimately, the trial court ruled as follows: "In this matter, if this went before the trier of fact where the standard of proof is beyond a reasonable doubt, I think [the] prosecution may have a much harder showing, here, based on this family history of animosity.
"But the standard of proof in a probation violation hearing is preponderance of the evidence. It's a credibility call between the defendant and the victim, which is also corroborated by the sister. [¶] . . .
"I find that the defendant committed a battery, in violation of Penal Code section 242, against Lesa Wells.
"I also find for purposes of any appellate record, under [sections] 1101 and 1109, that on a prior date, that the defendant committed a similar act where he committed a battery against [Crump]."
II. Standard of Review
We review the trial court's admission of evidence for abuse of discretion. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) Moreover, even if an appellant establishes an abuse of discretion, that error must have been prejudicial. (§ 353; see also Cal. Const., art. VI, § 13.) Error is prejudicial if it is reasonably probably that a result more favorable to the appellant would have resulted had the prior crimes evidence not been admitted. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
III. Any Alleged Error was Harmless
Here, the record shows that the trial court would not have reached a different result had the evidence of the October 6, 2009, incident been excluded. The trial court found that defendant committed battery against Lesa under the preponderance of the evidence standard. (People v. Rodriguez (1990) 51 Cal.3d 437, 442.) That finding is adequate to support the trial court's revocation of probation.
In urging reversal, defendant directs us to isolated comments made by the trial court. These comments do not compel reversal. While the trial court opined that the prosecution may have had a harder time if the standard of proof had been beyond a reasonable doubt, such a comment does not undermine the trial court's finding that the prosecution met its burden under the preponderance of the evidence standard. Also, while the trial court noted that it made a "credibility call" between defendant and Lesa, there is nothing to suggest that the trial court's finding was reached only after hearing the testimony of Crump. Certainly there was evidence of an acrimonious relationship between defendant and Lesa, but we will not substitute our evaluation of the credibility of the witnesses for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Autry (1995) 37 Cal.App.4th 351, 358.) Finally, the trial court's statement that it was considering Crump's testimony not as an independent basis for a probation violation, but only as to whether it buttressed the allegations that defendant struck Lesa appears to have been made for clarification purposes. It does not suggest, as defendant would like us to believe, that it found Lesa's testimony convincing only because it was bolstered by Crump's testimony.
Because there is no reasonable probability of a different result (People v. Felix (1999) 70 Cal.App.4th 426, 433), any alleged error was harmless.
All remaining arguments are moot.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST J.
We concur:
BOREN P. J
DOI TODD J.