P. v. Turner
Filed 1/8/13 P.
v. Turner CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SEAN THOMAS
TURNER,
Defendant and Appellant.
B236483
(Los Angeles County
Super. Ct. No. YA077615
)
APPEAL
from a judgment of the Superior Court of
County. Victor L.
Wright, Judge. Affirmed with
modifications.
Law Offices of
James Koester and James Koester for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * *
A
jury convicted appellant Sean Thomas Turner of infliction of corporal injury on
a spouse (Pen. Code, § 273.5, subd. (a), count 1)
to produce great bodily injury (§ 245, subd. (a)(1), count 2). Appellant admitted that he suffered a prior
conviction for spousal abuse within the meaning of section 243, subdivision
(e)(1). The trial court imposed
concurrent mid-term sentences of three years in state prison on counts 1 and
2. The trial court suspended execution
of sentence and placed appellant on formal probation for four years on terms
and conditions of probation, including that he serve 222 days in county
jail. Appellant was awarded 222 days of
presentence credit consisting of 148 days of actual custody credit and 74 days
of conduct credit.
Appellant
contends the trial court erred (1) by failing to instruct the jury sua sponte
on misdemeanor spousal battery (§ 243, subd. (e)) as a lesser included offense
in count 1; (2) by failing to instruct the jury sua sponte on misdemeanor
assault (§ 240) as a lesser included offense in count 2; (3) by instructing the
jury with CALCRIM No. 852, which allowed the jury to consider evidence of
uncharged acts of domestic violence; and (4) in calculating appellant’s
presentence credit.
We
order the abstract of judgment modified to reflect 296 days of presentence
custody credit. In all other respects,
the judgment is affirmed.
FACTS
Prosecution
Evidence
A. Incident on
On March
17, 2010, at approximately 7:57 p.m. Torrance Police Detective Jesus Garcia and his partner Officer
Wells responded to a domestic violence call.
The victim, Christina Turner,
told them that appellant had choked her with his hands. Christina was crying and “very upset.†Christina and appellant had known each other
for about 20 years, were married for 10 years, and had two children
together. Appellant was inside the
residence with their two children. She
told Detective Garcia that there had been prior incidents in their relationship
and appellant had been arrested in 2003 for domestic violence.
Detective
Garcia asked appellant to step outside the house and remain with Officer Wells
while he conducted a protective sweep of the Turner residence. Detective Garcia searched the residence room
by room. He also checked the backyard
and determined that only the couple’s two minor children were present. He brought Christina into the residence where
he tried to calm her down and interview her while appellant remained outside
with Officer Wells.
Christina
told Detective Garcia that appellant had been calling her and “e-mailing her
constantly throughout the day requesting that she transfer $4,000 into his bank
account.†She showed Detective Garcia
the e-mails on her cell phone. Christina
did not give appellant the money because he had a gambling problem. Appellant argued with Christina when he got
home over their financial problems in general and her refusal to transfer the
$4,000. Appellant was also upset with
Christina because she had voted for President Obama. Appellant threw a bottle of water at
Christina which missed her and spilled on the floor. He also threw a soft cushioned chair but it
did not hurt her.
Christina
told Detective Garcia that she walked towards the front door of the residence
because she no longer wanted to argue with appellant. She was carrying their 14-month-old baby in
her arms at the time. Appellant followed
her to the door and “pushed her up against the wall and proceeded to choke her
with his hand around her neck†while she was holding the baby. Appellant then took the baby from Christina
and used his elbow and forearm to pin her against the wall. Christina managed to escape and ran to her
next-door neighbor’s house from where she called 9-1-1.
Joel
Moreno lived next door to the Turner residence and was at home on the night of March 17, 2010. Christina came to his house
and asked to use the telephone.
Christina was “red and crying†and “looked like she was troubled, like
something was really wrong.â€
Christina
was coughing during the 9-1-1 call and told the dispatcher
that appellant had hurt her and was in the house with their children. She said that appellant had his hand around
her neck and choked her. In response to
the 9-1-1 operator’s questions regarding how the argument started, Christina
responded, “He called me a fucking nigger lover because I voted for Obama. He’s such a freak. There’s something wrong with him.†When the operator asked if appellant would
hurt the children, Christina responded, “I don’t know. He’s hurt me.â€
Officer
Wells photographed redness and markings on Christina’s neck which she said were
caused by appellant choking her earlier that evening.
Garcia that she wanted to divorce appellant and that she wanted him to be
prosecuted for choking her. She also
signed a form requesting an emergency protective order which was served on
appellant later that same night.
The
following day, Torrance Police Detective Fareed Ahmad interviewed Christina by
telephone. Christina told Detective
Ahmad that she and appellant had argued over the fact that she had voted for
President Obama, that appellant grabbed her by the neck and pinned her against
the wall, and that he did it to prevent her from calling the police. She complained of soreness and pain in the
neck area.
One
week after the incident, Christina filed an application for a
appellant. Christina also filed for
divorce as a result of the incident because she said she “thought things
through†and wanted to get out because “it was not healthy.†Approximately one month after the incident
and the day before appellant’s arraignment in this case, Christina and
appellant entered into a stipulation in the divorce proceedings which provided
that Christina “shall not press charges against or in any other way facilitate
or cooperate with the prosecution of [appellant] . . . with
regard to the incident on March 17, 2010, and the resulting criminal
case.†Christina further agreed to “make
a good faith effort to encourage the prosecutor to not continue with the
prosecution of [appellant] with regard to said incident in criminal
matters.†Christina also went to the
district attorney’s office to tell the prosecutor that she did not want
appellant charged.
B. Incident on
On
April 11, 2004, at approximately 9:25 a.m., Los Angeles County
Deputy Sheriff Johnny Quick and his partner Deputy Quan Chow responded to a
domestic violence call at appellant’s residence in Rancho Palos Verdes. Deputy Quick was speaking to appellant when
Christina came running across the street.
She was crying and yelling “He hit me.â€
Christina told Deputy Quick that appellant had a gambling addiction and
wanted credit cards that were in her name along with the personal
identification numbers to access the accounts.
Christina refused and an argument ensued. When Christina said she was going to call the
police appellant grabbed the telephone and “slammed his forearm and his elbow
in an upward motion into her chest.â€
Appellant threw two cordless telephones in Christina’s direction as she
ran from the house. Christina ran to a
neighbor’s house from where she called 9-1-1.
Deputy
Quick saw that Christina had injuries to her nose and chin and she complained
of pain in her chest from appellant’s elbow.
Christina told Deputy Quick that she and appellant had also argued the
previous day because appellant had pawned household items to pay for his
gambling. Appellant struck Christina
with his forearm and elbow and also grabbed her throat and shook her. Deputy Quick observed bruises that were
consistent with injuries inflicted prior to the current incident. Neither appellant nor Christina were under
the influence of alcohol.
The
following day, Los Angeles County Sheriff’s Detective Jennifer Williams went to
Christina’s home to interview her regarding the incident. Christina told Detective Williams that
appellant had pawned numerous items including his wedding ring to pay his
gambling losses, and provided Detective Williams with a copy of the pawn
slips. Detective Williams observed
several bruises on Christina’s arms and on her left shoulder. Christina told Detective Williams that
appellant had thrown a remote control that struck her in the arm, and shook her
and threw her up against a wall.
Christina said that appellant had struck her in the past and she called
the police on three prior occasions because of appellant’s behavior.
C. Christina’s Trial Testimony
At the time of appellant’s trial Christina and appellant were living
together and she testified that she loved him.
She testified that appellant never touched her on the night of March 17,
2010, and that she had “never ever been hit or hurt by a man.â€
Christina
testified that she and appellant argued over their personal finances and the
state of the economy. Christina was
holding the baby, who had her arms wrapped around Christina’s neck. Christina decided to leave for a walk or a
drive to cool down because of the argument.
Appellant did not want Christina to take the baby outside and grabbed
her from Christina’s arms. The baby
scratched Christina as appellant grabbed her and pulled her away from
Christina. Christina also testified that
she gets blotchy and red when she is upset.
Christina
claimed that she lied on the 9-1-1 call because she was angry with how
appellant mishandled the finances and she wanted him out of the house. She lied to Detective Garcia when she told
him that appellant choked her and slammed her against the wall because she was
“angry†and “vindictive†and would say anything in order to get the police to
“take [appellant] away.†But, she
insisted that on the night of the incident she told Detective Garcia and
Officer Wells that the baby caused the scratches and redness on her neck. Christina explained that she was referring to
appellant’s poor decisionmaking involving business investments when she said he
had a gambling problem. Christina did
not ask for a protective order on the night of the incident and told the police
officers that she did not want to press charges against appellant.
Christina
testified that she remembered speaking with Detective Ahmad by telephone the
day after the incident. She told him
that the argument was about their finances and not about President Obama. She did not tell Detective Ahmad that
appellant choked her or pinned her against the wall. She told him that the injuries to her neck
occurred when appellant took her daughter from her.
Christina
acknowledged that she applied for a restraining order but did not remember what
reasons she listed on the application form for wanting it, but insisted that it
was only obtained to keep appellant out of the house. She filed for divorce not because appellant
choked her but because they had been arguing for a couple of months and the
latest incident was the “last straw.â€
Christina testified that a mediator prepared the stipulation for the
divorce proceedings. She signed it
because she wanted the divorce to take place and not to help appellant avoid
prosecution on the current charges.
With
respect to the 2004 incident, Christina testified that she and appellant had
both been drinking and got into an argument.
Appellant first dared her to call the police and then threw the
telephone to the ground when it appeared she was going to do so. Christina did not remember what the argument
was about on that particular day but they usually argued about finances. She did not remember what she told the police
officers at that time but she was certain that appellant did not strike
her. She denied ever meeting or talking
with Detective Williams regarding the case.
D. Expert Testimony
Gail Pincus, the
executive director of the Domestic Abuse Center in Van Nuys, testified as an
expert on Battered Woman Syndrome (BWS). Pincus testified that BWS is a theory that
explains the cycle of abuse in a relationship between a batterer and his
victim. The batterer achieves his need
for power and control of his partner and their children through criticism,
emotional abuse, isolation, jealousy, economic control and abuse, coercion,
threats, intimidation, and violence.
Violence often begins with a push or a shove, grabbing, and slamming
into walls. It escalates to punches,
kicks, strangulation, and the use of weapons, culminating in murder.
Pincus
explained that women suffering from BWS commonly recant their initial reports
of abuse. In many cases the victims
minimize the abuse, blame themselves for its occurrence, or deny the abuse
occurred at the urging and brainwashing of the abuser. Battered women often deny that
they were victims of violence to remain with their abusers. They humanize their abuser and are concerned
about the abuser’s safety. The
“Stockholm Syndrome†which occurs when a hostage begins to view her attacker as
the good guy and as the one who is misunderstood, explains why the hostage
would recant his or her story, deny some of the violence that occurred and try
to protect the abuser.
Pincus
made clear that her testimony was offered to educate the jury about BWS, and
was not intended to prove whether domestic violence took place in a particular
case. She did not read the police
reports or speak with any of the individuals involved in the instant case, and
she was unable to determine whether Christina suffered from BWS.
Defense
Evidence
Appellant
testified on his own behalf. On March
17, 2010, he and Christina argued about the mortgage payment. He told Christina that he did not have the
funds to pay the mortgage payment and asked her to lend him the money for one
day. Christina started “ranting†and
“raving†and using profanity and was “out of her mind.†The baby began to cry when the argument got
loud and Christina picked her up and walked towards the front door of the
house. Christina swore at him when he
asked her where she was going. He
approached Christina and attempted to pull the baby away from her. The baby’s hands were around Christina’s neck
and she continued to hold on to her mother.
He continued to pull the baby for two or three minutes until he was
successful in getting her away from Christina.
Christina ran out of the house and he took the baby back to the living
room.
Detective
Garcia and Officer Wells came to his house approximately 30 minutes after
Christina left the house. Officer Wells
handcuffed him and took him outside. He
told Officer Wells that he did not know why Christina called the police and why
he was being handcuffed. He also told
Officer Wells that his mother Penny had been present at the house during the
argument.
title="">[5]
Appellant
denied striking or grabbing Christina at any point during the argument. He denied trying to influence Christina’s
testimony or dissuade her from testifying, but he acknowledged signing a
stipulation in which Christina agreed to withdraw restraining orders she had
against him and not cooperate with the prosecution of charges arising out of
the March 17, 2010 incident.
With
respect to the 2004 incident, he testified that it was a “pretty crazy
weekend.†He and Christina had been
drinking all weekend and were both very drunk when they argued. Christina dared him to throw a telephone at
her and he did. The phone broke close to
her but he did not think it hit her. He
denied striking her with his hands or arms.
When asked about the bruises on Christina’s body observed by Detective
Williams, appellant testified that he and Christina had engaged in “rough sexâ€
that weekend. He was so drunk that
weekend he did not remember meeting with Detective Williams. He did not remember telling Detective
Williams that he had a gambling problem and argued with Christina about money,
that he may have pushed Christina at some point during the argument, or that he
“snapped†because he was under too much stress.
Appellant’s
mother, Penny Turner, testified that she was in the house on the evening of
March 17, 2010 and witnessed the incident involving Christina and
appellant. Appellant and Christina
started arguing about finances as soon as they got home. She told appellant to get the baby when
Christina started to walk towards the door holding the baby. She saw the baby’s hands holding onto
Christina’s neck as appellant tried to take her from Christina. When Christina left the house, Penny went
outside to look for her. She “walked a
little ways†but did not see her and returned to the house. She stayed at the house for at least 15
minutes before leaving for the night.
She never witnessed any physical contact between appellant and Christina
and never heard appellant use any foul language.
I. Instructional
Error Regarding Lesser Included Offenses
Appellant
contends that the trial court violated its sua sponte duty to instruct the jury
on the lesser included offenses for each count.
Standard
of Review and Relevant Law
We
review de novo whether the trial court erred in failing to instruct on a lesser
included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
“In a
criminal case, a trial court must instruct on the general principles of law
relevant to the issues raised by the evidence.
[Citation.]†(
885.) “That obligation has been held to
include giving instructions on lesser included offenses when the evidence
raises a question as to whether all of the elements of the charged offense were
present [citation], but not when there is no evidence that the offense was less
than that charged. [Citations.]†(People
v. Breverman (1998) 19 Cal.4th 142, 154.)
Alternatively stated, an instruction on a lesser included offense is not
required when the evidence is insufficient to support a conviction of that
offense. (People v. Hawkins (1995) 10 Cal.4th 920, 954, overruled on other
grounds in People v. Blakeley (2000)
23 Cal.4th 82, 89.) “It is error
. . . to instruct on a lesser included offense when a defendant,
if guilty at all, could only be guilty of the greater offense, i.e., when the
evidence, even construed most favorably to the defendant, would not support a
finding of guilt of the lesser included offense but would support a finding of
guilt of the offense charged.
[Citation.]†(
785, 795–796.)
“Any
error in instructions on a lesser included offense in a noncapital case is
subject to the [People v.]
reversal only if it is reasonably probable that a result more favorable to the
defendant would have been reached in the absence of such error. (People
v. Breverman, supra, 19 Cal.4th at p. 165)â€
(People v. Stewart, supra, 77
Cal.App.4th at p. 796.)
Spousal Battery as a Lesser Included Offense of Corporal Injury to a Spouse
Appellant
contends that there was a plausible alternative to the
prosecution’s theory that appellant personally caused the injuries. He argues he was entitled to an instruction
on misdemeanor battery. According to appellant, given the conflicting nature of the
testimony regarding the incident, the jury might have believed that Christina’s
injuries were caused by the baby clinging to her neck rather than appellant
striking her.
The
jury found appellant guilty of felony spousal abuse under section 273.5,
subdivision (a), which provides: “Any
person who willfully inflicts upon a person who is his or her spouse, former
spouse, cohabitant, former cohabitant, or the mother or father of his or her
child, corporal injury resulting in a traumatic condition is guilty of a
felony, and upon conviction thereof shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for not more
than one year, or by a fine of up to six thousand dollars ($6,000) or by both
that fine and imprisonment.â€
The
term “‘traumatic condition’†means “a condition of the body, such as a wound or
external or internal injury, including, but not limited to, injury as a result
of strangulation or suffocation, whether
of a minor or serious nature, caused by a physical force.†(§ 273.5, subd. (c), italics added.)
“Section
273.5 is violated when the defendant inflicts even ‘minor’ injury. Unlike other felonies, e.g., aggravated
battery (§ 243, subd. (d)) which require serious or great bodily injury, ‘the
Legislature has clothed persons of the opposite sex in intimate relationships
with greater protection by requiring less harm to be inflicted before the
offense is committed.’ [Citation.]†(People
v. Wilkins (1993) 14 Cal.App.4th 761, 771.)
Under the expansive reach of the statute, a traumatic condition can be
established by bruising or redness. (
1078, 1085–1086 [bruising]; People v.
Wilkins, supra, at p. 771 [redness about the face and nose].)
Misdemeanor
battery on a spouse under section 243, subdivision (e)(1), is a lesser included
offense to felony spousal abuse under section 273.5, subdivision (a). (People
v. Hamlin (2009) 170 Cal.App.4th 1412, 1457.) Section 243, subdivision (e)(1)
provides: “When a battery is committed
against a spouse, a person with whom the defendant is cohabiting, a person who
is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a
person with whom the defendant currently has, or has previously had, a dating
or engagement relationship, the battery is punishable by a fine not exceeding
two thousand dollars ($2,000), or by imprisonment in a county jail for a period
of not more than one year, or by both that fine and imprisonment.†For purposes of this crime, a “battery†is
defined as “any willful and unlawful use of force or violence upon the person
of another.†(§ 242.) Thus, felony spousal abuse requires a
“traumatic condition,†but misdemeanor battery on a spouse does not.
Appellant’s
contention fails because the duty to instruct the jury on lesser included
offenses is not triggered “when there is no evidence that the offense was less
than that charged.†(
307, 323–324, overruled on other grounds in People
v. Barton (1995) 12 Cal.4th 186, 201.)
Here,
the jury was faced with deciding between two conflicting scenarios. Detective Garcia testified that when he
responded to the 9-1-1 call he found Christina crying and upset and she told
him that appellant had pinned her against the wall and choked her with his
hands. Detective Garcia saw redness and
markings on Christina’s neck and Officer Wells photographed the injuries. On the other hand, appellant presented
evidence to support his defense theory that the “traumatic condition†was
caused by the baby. Both appellant and
his mother Penny testified that appellant never touched Christina. Christina also testified that appellant never
touched her on the night of March 17, 2010. She testified that she did not tell the
police officers that appellant assaulted her.
She explained that she “get[s] red all over†and “blotchy†when upset,
and her alleged injuries were part of a ruse to get appellant kicked out of the
house.
The
jury chose to accept Detective Garcia’s version of events, supplemented by the
photographs of Christina’s injuries taken at the scene, and rejected
Christina’s recantation of her earlier statements to Detective Garcia and
appellant’s defense theory. But neither
scenario supported an instruction for misdemeanor battery. Either appellant hit and choked Christina,
causing the injuries observed by Detective Garcia, or appellant did not touch
Christina. Appellant concedes, as he
must, that one of the statutory elements of spousal battery requires a willful
or unlawful touching done in a harmful or offensive manner. (See CALCRIM No. 841; People v. Myers (1998) 61 Cal.App.4th 328, 335.) The state of the evidence did not support
a finding that appellant was guilty of simple battery on Christina. (People
v. Wickersham, supra, 32 Cal.3d at pp. 323–324.)
Appellant
acknowledges that proof of a traumatic injury distinguishes the offenses but
argues that a juror could have found “that the prosecution had not proven the
traumatic injury element of the Section 273.5 offense beyond a reasonable
doubt.†We disagree. To do so, a juror would have had to ignore
the testimony, the photographic evidence, and the broad statutory definition of
“‘traumatic condition.’†(§ 273.5,
subd. (c); People v. Wilkins, supra,
14 Cal.4th at p. 771.)
We
are satisfied the trial court did not err in not instructing the jury on
misdemeanor battery of a spouse as a lesser included offense of inflicting corporal
injury to a spouse.
Assault as an Included Offense of Assault by Means Likely to Produce Great
Bodily Injury
Appellant contends that the court should have instructed the jury,
sua sponte, on misdemeanor assault as an included offense of assault by means
likely to produce great bodily injury because of the “minor nature of any
injuries that may have been inflicted, and the lack of any evidence as to the
amount and character of the force of the assault.â€
Simple assault (§
240) is a lesser included offense of assault by means of force likely
to cause great bodily injury. (
961, 968.) The two
offenses are distinguished by the degree of force used in their
commission. An assault is “an unlawful
attempt, coupled with a present ability, to commit a violent injury on the
person of another.†(§ 240; see also
779, 784.) A violation of section 245,
subdivision (a)(4), by contrast, requires an assault committed by means of
force “which is significant or substantial, not insignificant, trivial or
moderate.†(People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
Whether
Christina in fact suffered any harm is immaterial as the focus of the inquiry
is whether appellant’s conduct was likely to produce great bodily injury. (People
v. McDaniel (2008) 159 Cal.App.4th 736, 747–748.) Here, the trial court had a duty to instruct
the jury on simple assault if there was substantial evidence that appellant
used a degree of force that was “insignificant, trivial or moderate.†But, as we have described, appellant choked
Christina and pinned her to the wall by her neck and chest using his forearm
and elbow. Christina had redness and
markings on her neck and could be heard coughing on the 9-1-1 call moments
after she said appellant had choked her.
The following day she complained of soreness and pain in the neck
area. This degree of force cannot be
described as “insignificant, trivial or moderate.†(People
v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
The trial court had no sua sponte duty to instruct on the lesser
included offense.
Error
In
any event, assuming arguendo the trial court erred by not instructing the jury
on the lesser included offenses in counts 1 and 2, we nevertheless conclude it
is not reasonably probable appellant would have been convicted of the lesser
offenses. The prosecution presented
strong evidence showing appellant committed the offenses of corporal injury on a spouse (§ 273.5, subd. (a)) and assault by
means likely to produce great bodily injury (§ 245, subd. (a)(1)). Had
the trial court instructed on misdemeanor battery and misdemeanor
assault, it is reasonably probable the jury would nevertheless have convicted
him of the greater offenses. The jury
was presented with two competing versions of what occurred, one implicating
appellant and one exonerating him. The
prior domestic violence evidence was highly probative in the evaluation of the
credibility of the two competing versions of events, and the 16-minute
deliberation of the jury before reaching a verdict likely reflected the
strength of the prosecution’s case. (
973–974.) Thus, there was no reasonable
probability of a different outcome. (
836.)
II. Use of
CALCRIM No. 852 Did Not Violate Due Process
Appellant
contends the trial court violated his due
process rights by instructing the jury with CALCRIM No. 852, “Evidence of
Uncharged Domestic Violence.â€
Specifically, he objects to instructional language that permitted the
jury to consider evidence of the uncharged domestic violence incident if proven
by a preponderance of the evidence. He
claims the instruction allowed the jury to find the ultimate fact “based upon
foundational facts that were found under a less than beyond a reasonable doubt
standard.†We disagree.
CALCRIM No. 852
is similar to CALJIC No. 2.50.02, which also deals with the manner in which
juries can consider evidence of uncharged acts.
In People v. Reliford (2003)
29 Cal.4th 1007, 1016, the court rejected virtually the same challenges as
raised here. Following
Appeal in People v. Reyes (2008) 160
Cal.App.4th 246, 250–253, reached the same conclusions regarding CALCRIM
No. 852. The court in Reyes
specifically rejected the two contentions raised here. The same court again rejected these
contentions in People v. Johnson
(2008) 164 Cal.App.4th 731, 738–740.
Appellant argues
his challenge is somehow different from that raised in People v. Reliford, supra, 29 Cal.4th 1007, although that opinion
finds no due process violation in the similar language of the CALJIC
instruction. Appellant contends the
court in Reliford considered “only
the internal mechanisms of the instruction itself and did not consider the
question through a holistic examination of the inter-relationship of the prior
crimes evidence instruction and the circumstantial evidence instructions.†We disagree with appellant and conclude the
issues he now raises have been rejected by both the Supreme Court and the Court
of Appeal. We agree with the reasoning
in Reyes and Johnson and, of course, we follow the directions of
the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
The
trial court did not deny appellant his right to due process by instructing the
jury with CALCRIM No. 852.
III. Award
of Presentence Custody Credits
Appellant
contends that he is entitled to an additional 74 days of presentence conduct
credit pursuant to section 4019. The
People concede this point and we agree.
Appellant’s
offense was committed on March 17, 2010.
He was convicted on February 25, 2011, and he was sentenced on July 22,
2011, receiving 148 days of actual custody credit and 74 days of conduct
credit, for a total of 222 days. These
credits were calculated under an amended version of section 4019 not effective
until September 28, 2010, after appellant committed the instant offenses. (Stats. 2010, ch. 426, § 2.) Appellant should have been sentenced under
the version of section 4019 effective January 25, 2010, under which he was
entitled to presentence conduct credits equal to the amount of actual
(f).) The correct calculation would give
appellant 148 days of actual custody credit and 148 days of conduct credit, for
a total of 296 days.
The judgment is modified to reflect
that appellant is awarded 296 days presentence credit consisting of 148 days
actual custody credit and 148 days of conduct credit. The clerk of the superior court is ordered to
prepare an amended abstract of judgment and to forward a certified copy to the
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
_______________________,
Acting P. J.
DOI TODD
We concur:
_______________________,
J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
unless otherwise stated.
first names for ease of reference, and intend no disrespect.
