P. v. Wade
Filed 7/19/13 P. v. Wade CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM EARL WADE,
Defendant and Appellant.
E056136
(Super.Ct.No. FBA1000793)
OPINION
APPEAL
from the Superior Court of
County. Victor R.
Stull, Judge. Affirmed.
John
D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On December 9, 2010, an information charged
defendant and appellant William Earl Wade with
422 (count 1), and dissuading a witness from testifying under Penal Code
section 136.1, subdivision (a)(1), (count 2).
The information also alleged that defendant had suffered a prior
conviction under Penal Code sections 1170.12, subdivisions (a) through (d), and
667, subdivisions (b) through (i).
On December 21, 2010, defendant pled not guilty to all counts. On February 4,
2011,
jury trial commenced. On February 15, 2011, defendant’s motion pursuant to Penal Code section
1118.1, to dismiss count 1, was denied.
On February 16, 2011, the jury found defendant
guilty on both counts, and on March 25, 2011, defendant admitted the
prior allegation charged in the information.
On April 22, 2011, the trial court denied probation and sentenced
defendant to prison for six years as follows:
on count 1—the upper term of three years, doubled under Penal Code
section 1170.12; and count 2—365 days in county jail to run concurrent to count
1. The court ordered defendant to pay
various fines and fees, and awarded defendant 285 days of credit for time
served.
After
a timely notice of appeal was not
filed on defendant’s behalf, we granted defendant’s petition for habeas corpus
to establish constructive timely filing of a notice of appeal.
STATEMENT OF FACTS
Debra Harper lived with her fiancé (defendant) and their
child in a trailer in Barstow. Defendant owned the trailer and held the
lease at the trailer park.
On May 29, 2010, Harper and defendant had been drinking with
neighbors and Harper passed out. When
she woke up, defendant was standing over her with a pipe. Harper had injuries to her head and elbow,
and there was blood on her and the pipe, but she did not see any blood on
defendant. Harper jumped up, started
screaming and running, called the police, and locked herself in the bathroom
with her child. Harper assumed that
defendant hit her with the pipe while she was sleeping.
Barstow
Police Officers D’Andrea and Silva responded to the 911 call. Officer D’Andrea contacted Harper, who was
bleeding profusely and had contusions on her head, arm, and leg. The officers asked defendant to come out of the
residence; he complied. Officer Silva
questioned defendant. Officer D’Andrea
spoke with Harper inside. Harper was
shaken and in fear for her life. She
told Officer D’Andrea that she had been assaulted by defendant with a metal
pipe, which she showed him. She said
that defendant told her that if the police were involved, “he would slit her
throat.â€
Defendant
was arrested. Harper testified at
defendant’s trial, and defendant was eventually acquitted.
While
defendant was in jail, Harper sold his truck.
When defendant returned to the residence, after being released from
jail, he found out that his truck had been sold. This upset defendant. Harper testified that defendant “kept getting
on [her] nerves†about the truck, and she “was just trying to put him back in
jail.†She admitted calling 911 on
several occasions, “almost every day.â€
Harper admitted that her 911 calls were “prank calls†because she
“needed [defendant] to get away from [her].â€
Harper
testified that she called the Barstow Police Department and spoke to a
dispatcher named “Dorothea.†She told
the dispatcher that defendant was harassing her. She stated that she had put defendant in jail
for spousal abuse, and that she “lied on the witness stand†because defendant
convinced her that “everything was going to change†once he was released from
jail. Harper eventually pled guilty to
perjury for lying at defendant’s trial.
Harper
also testified that she spoke to “Victoria in Victorville†about being
relocated to a domestic violence shelter.
Harper wanted to relocate because defendant was giving her a hard time
about the truck.
Barstow
Police Officer Nevarez responded to Harper’s 911 calls on August 31 and September 4, 2010. On each
occasion, Harper asked the officer to make defendant leave. Officer Nevarez determined that there had
been nothing but a verbal argument and explained to Harper that defendant had
not done anything wrong; hence, there was no probable cause to arrest him or
make him leave.
On September 7, 2010, Harper and defendant were preparing to move. Some of Harper’s belongings were in the front
yard and defendant wanted Harper to bring the items in the house. Harper told defendant that it was too hot
outside and that she was going to wait until it was cooler outside. Harper was talking on the telephone to her
son. Defendant told her to “‘get your
ass up, go out there and put [the] clothes away. Unplug that phone. Don’t talk on the phone all day long.’â€
Harper’s
son testified that as he was talking to his mother on the telephone, defendant
and his mother began to argue. He heard
defendant tell Harper, “‘Bitch, you working on another ass whooping. Don’t make me finish what you started.’†Then the telephone line went dead. The son tried to call Harper back, but the
call went directly to voicemail. The
same thing happened when Harper’s son tried calling her on her cell phone. The son then called the police.
Officer
D’Andrea and Corporal Torro responded to the 911 call. Officer D’Andrea testified that he positioned
himself outside the residence, beneath a window, and listened to a loud
argument between defendant and Harper.
He heard Harper say that she was going to take “letters to the District
Attorney’s Office.†Defendant told
Harper to “go outside and pick everything up.â€
Harper yelled, “‘You’re not going to keep man-handling me,’†and said
that she was “going to involve the police.â€
Defendant responded, “‘They’re not going to believe you. You’re not credible. You lie.’â€
Defendant then stated, “‘Bitch, I’ll smack your face off.’â€
At
that point, the officers entered the residence.
Defendant was asked to step outside with Corporal Torro; he
complied. Officer D’Andrea entered the
residence and spoke with Harper alone.
The officer recorded Harper’s entire statement. There were no indications that Harper was
under the influence of alcohol or drugs.
Harper appeared afraid, but there were no physical injuries to her or
damage to the trailer. Harper was upset
with defendant about how she was being treated.
Harper
then gave Officer D’Andrea two letters.
Harper testified that while she was visiting defendant in jail, he
showed her two letters through the glass partition of the jail. At that time, Harper looked at the letters,
but denied reading them. The letters
urged Harper to get a notarized statement of retraction of her charges against
defendant. Harper testified that she
never read the letters in jail; however, she did read the letters after
defendant returned home after being acquitted and released from jail.
Harper
told Officer D’Andrea that she was on the phone with her son. Defendant got upset with her; he told her to
get off the phone and go outside to pick things up. Defendant unplugged the phone and ripped the
jack out of the wall. Harper testified
that she told Officer D’Andrea that defendant was bragging because he “beat the
case.†Harper denied lying on the stand
to protect defendant and denied helping defendant “beat the case.â€
Harper
told Officer D’Andrea that defendant said, “‘I might as well finish what I
started. . . . [Y]ou keep calling your
family. They’re not going to make it on
time. You’ll be dead before they get
here.’â€
On
the witness stand, Harper denied that defendant told her that he was going to
finish what he started, and she denied telling Officer D’Andrea that as
well. Harper testified that she did not
believe that the officers could have heard anything clearly with the air
conditioner running, music playing, the TV on, and the two of them yelling at
each other. Harper also denied telling
the officer that defendant told her, “[t]he police aren’t going to make it in
time.†She did admit telling Officer
D’Andrea that she was in fear for her life because she was trying to get rid of
defendant.
ANALYSIS
After defendant
appealed, and upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of
and Anders v. California (1967) 386
U.S. 738, setting forth a statement of the case, a summary of the facts and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We offered defendant an
opportunity to file a personal
supplemental brief, and he has done so.
On April 29, 2013, defendant submitted a 17-page typewritten brief. In his supplemental brief, defendant claims
that: (1) the trial court abused its
discretion under Evidence Code section 352; and (2) the trial court erred in
sentencing defendant to the upper term.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record
for potential error.
1. Evidence Code Section 352
First, we address
defendant’s Evidence Code section 352 argument.
In this case, the prosecutor presented photographic exhibits from a
prior domestic violence incident, which had resulted in an acquittal. Defendant, in essence, argues that the
probative value of the photographs was not outweighed by the prejudicial effect
of the jury seeing these photographs.
“Under Evidence Code section
352, the trial court enjoys broad discretion in assessing whether the probative
value of particular evidence is outweighed by concerns of undue prejudice, confusion
or consumption of time. [Citation.] Where, as here, a discretionary power is
statutorily vested in the trial court, its exercise of that discretion ‘must
not be disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]â€
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124-1125.) “That
discretion is only abused where there is a clear showing the trial court
exceeded the bounds of reason, all circumstances being considered.†(People
v. Martinez (1998) 62 Cal.App.4th 1454, 1459.)
Here, the jury heard
testimony about and saw photographs from the May 29, 2010, incident. Exhibits 6, 8, and 9 were pictures showing
Harper with her injuries. Exhibit 7 was
a picture of the pipe used to inflict the
value of the Evidence Code [section] 1109 evidence, in fact the evidence would
have been welcomed to the extent it provided a foundation of credibility and
the incompatibility of [defendant] and Ms. Harper.†We agree with defendant.
The probative value of the
photographs was high. Here, defendant
was charged with making criminal threats and
statements and stated that defendant neither harmed her nor threatened to harm
her. She simply wanted to put him in
jail because he was getting on her nerves.
The photographs, however, showed evidence to the contrary. The evidence was highly probative.
On the other hand, the
evidence was not unduly prejudicial.
“‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant
as an individual and which has very little effect on the issues.â€â€™ [Citation.]â€
(People v. Miller (2000) 81
Cal.App.4th 1427, 1449.) Here, the pictures
were not so inflammatory that it might have caused the jurors to be distracted
from their main task of evaluating guilt in the current case or to be tempted
to convict or punish defendant for his prior misconduct. In this case, there was ample testimony from
officers at the scene and from Harper’s son to corroborate Harper’s own
statements before trial that defendant made criminal threats. The evidence was simply used to challenge
Harper’s credibility at trial.
In balancing the probative
versus the prejudicial value of the admitted evidence, we find that the trial
court did not abuse its discretion. The
trial court properly concluded that the potential for prejudice was outweighed
by the probative value of the evidence.
2. Defendant’s Sentence
Next, defendant contends
that the “trial court erroneously found aggravating factors when it applied the
high term.†In short, defendant contends
that the trial court’s imposition of the upper term on count 1—using the May
29, 2010, incident as an aggravating factor—was erroneous.
“The
midterm is statutorily presumed to be the appropriate term unless there are
circumstances in aggravation or mitigation of the crime. [Citations.]â€
(People v. Avalos (1996) 47
Cal.App.4th 1569, 1582-1583.)
“‘Sentencing courts have wide discretion in weighing aggravating and
mitigating factors [citations], and may balance them against each other in
“qualitative as well as quantitative terms†[citation] . . . . We must affirm unless there is a clear
showing the sentence choice was arbitrary or irrational.’†(Id.
at p. 1582.) Moreover, “[A] single
factor in aggravation suffices to support an upper term.†(People
v. Osband (1996) 13 Cal.4th 622, 730, distinguished on other grounds by
714.) The trial court need not explain
its reasons for rejecting mitigating factors.
(People v. Avalos,
In this case, at the sentencing hearing,
incident could not be used as an aggravating factor since defendant had been
acquitted in that matter. Contrary to
defendant’s assertion, the trial court agreed with defense counsel. The court stated: “With respect to the reference in the
probation report to the prior case, I do agree with you. And in fixing the term that I have decided to
impose in this case, I disregard it because I don’t think it is
appropriate.†Hence, the trial court did
not use the acquitted offense as an aggravating factor. Instead, the trial court, in sentencing
defendant to the upper term, stated that it was doing so because defendant
threatened violence and because defendant’s prior offenses were numerous and
indicated a pattern of increasing violence.
Based
on the above, we do not find the court’s sentencing decision arbitrary or
irrational. There was no abuse of
discretion.
We have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We
concur:
RAMIREZ
P. J.
CODRINGTON
J.
