P. v. Wren
Filed 5/23/13 P. v. Wren CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES WREN,
Defendant and Appellant.
C070284
(Super. Ct. No. 10F06969)
A jury
found defendant Charles Wren guilty of
on his girlfriend, S., and vandalizing her house following an incident where he
severely beat S. and then “tore up [her] house.â€
On appeal
from the resulting conviction, defendant contends the trial court erred in
admitting a prior act of domestic violence he perpetrated against his ex-wife
and in calculating his presentence custody
credits. Disagreeing, we affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
In August
2010, defendant and S. were living together in her Sacramento
house. They got into a fight because S.
would not give him money. Defendant went
“ ‘ballistic’ †and started yelling and screaming. He hit her multiple times.
bruising and swelling on her face and eye, lumps on her head from defendant
hitting her and slamming her face into a wall, a scratch on her neck from being
choked by him, and blood on her pants.
The fight was interrupted when S.’s father came to the house. He took S. with him and told defendant to get
out by morning.
When S.
returned the next day, her house was “tor[n] up.†There were holes in many of the walls, broken
windows, clothes cut up and strewn everywhere, and food in the kitchen dumped
and covered in bleach.
Defendant
had perpetrated prior acts of domestic
violence against S. and against his ex-wife.
1.
In August
2007, S. reported an incident to police in which defendant had threatened to
kill her, punched her face, and thrown three bricks at her. He started to walk away, but then he returned
and knocked her to the ground. She also
told police about an earlier incident in which defendant shattered her car
window, cutting her ear, necessitating six stitches.
In August
2008, S. reported an incident to police in which defendant threw S. down by her
hair and stomped on her, causing bruising on her face.
2.
In June
1995, defendant was married to a woman with whom he had a six-month-old
daughter. Defendant and his ex-wife got
into an argument about him having an extramarital affair. The argument “g[o]t violent,†and defendant’s
ex-wife tried to call police. He took
the cordless phone and hit her with it on the nose, causing her to bleed. When she tried to leave their house,
defendant threw a glass bottle at her that passed her head and shattered the
living room window behind her.
DISCUSSION
I
Act Of
Ex-Wife
Defendant
contends the court violated his federal and state due process right to a fair
trial by admitting evidence of the prior act involving his ex-wife because the
incident was remote, cumulative, and unrelated to the current crimes and the
court did not properly weigh the probative value of the evidence against its
prejudicial effect.
When the
court admitted the prior act evidence related to defendant’s ex-wife, it noted
the following: Initially, the parties
had discussed admitting the evidence when the People thought S. was going to be
a recanting witness. In that context,
the prior-act evidence related to the ex-wife “was in the interest of justice
because the only other [domestic violence] witness was [S.]†In fact, S.’s testimony ended up conceding
many of the incidents she had originally reported to police. In light of S.’s testimony, “the interest of
justice may still be served, but it seem[ed] like a far more limited argument.†The People then noted that because of “how
the case ha[d] changed,†“the People stopped questioning [the ex-wife] about
further prior domestic violence in this case.â€
The court concluded by noting that the People limited their questioning
of the ex-wife to only one incident and the “more egregious aspects of her
[domestic violence] experience were not presented to the jury.â€
This court
has held that Evidence Code section 1109, which allows for propensity evidence
in domestic violence cases, does not violate due process in light of its safety
valve granting trial courts the discretion to exclude acts of
section 352. (People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.) Evidence Code section 352 permits the
exclusion of relevant evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.†A trial court’s decision to admit the
evidence is reviewed for an abuse of discretion. (People
v. Cain (1995) 10 Cal.4th 1, 33.)
The trial
court did not abuse its discretion here.
The court cautiously admitted only one prior incident involving the
ex-wife, given that S. admitted, albeit reluctantly, the acts of domestic
violence perpetrated by defendant. The
prior act involving the ex-wife was much less egregious than the current
domestic violence in that the jury learned only that defendant hit his ex-wife
in the nose with a cordless phone, causing her to bleed, whereas the current
domestic violence involved defendant repeatedly punching S. and slamming her
face into a wall, causing many injuries.
The age of the incident involving the ex-wife was not a factor weighing
against its admission because defendant had not led a blameless life in the
interim, as evidenced by his repeated violence against S. that predated the
current act of domestic violence. As our
Legislature has recognized, “ ‘[t]he propensity inference is particularly
appropriate in the area of domestic violence because on-going violence and
abuse is the norm in domestic violence cases.’ †(People v. Johnson, supra,
77 Cal.App.4th at p. 419, quoting Assem. Com. Rep. on Public Safety (June 25,
1996) pp. 3-4.) This was exactly what
the prior act evidence showed here.
Finally, the evidence was relevant insofar as it related to patterns and
characteristics of domestic abuse, which might help explain why S.’s testimony
was filled with “I don’t remember†or “I don’t recall†equivocations.
Against
this backdrop of relevance, countervailing concerns of unfair prejudice,
consumption of time, and the like were limited.
As noted, the People elicited evidence of only one incident involving
defendant’s ex-wife that was far less egregious than the charged offense. The incident involving the ex-wife took up
only four pages of testimony and elicited no
was well within its discretion to admit the prior-act evidence involving
defendant’s ex-wife.
II
Credits
Defendant
contends he was entitled to additional presentence conduct credits under the
October 2011 amendment to section Penal Code
section 4019, arguing the amendment should be applied retroactively to his
sentence. He makes both a statutory
construction argument and an equal protection argument. Neither is persuasive.
Defendant
committed his offenses on August 7,
2010. He was sentenced on January 27,
2012. At the time of his offense,
defendant was entitled under former section 4019 to two days of conduct credit
for every four days actually served. The
trial court correctly awarded defendant 92 days of conduct credit based on his
187 days of actual custody credit.
Effective
October 1, 2011, section 4019 was amended to provide two days of conduct credit
for every two days of actual custody credit.
(§ 4019, subd. (f) [“a term of four days will be deemed to have been
served for every two days spent in actual custodyâ€].) The amended statute provides: “The changes to this section . . . shall
apply prospectively and 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 October 1, 2011.†(§ 4019,
subd. (h).) Despite this express
statement of prospective application, defendant contends the amendment should
be applied retroactively to his sentence.
Defendant’s
first argument is based on statutory construction. He contends the second sentence of section
4019, subdivision (h), suggests that days earned by a prisoner after October 1,
2011, must be calculated at the rate established by the new law. The language in section 4019, subdivision
(h), that “[a]ny days earned . . . prior to October 1, 2011, shall be
calculated at the rate required by the prior†law could be read to imply that
any days earned by a defendant after that date should be calculated using the
amended rate, regardless of the date the offense was committed. (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 52.) However, to do so would invalidate the
immediately preceding sentence of section 4019, which explicitly limits the
benefits of the new accrual rate to those defendants who committed their crimes
after October 1, 2011. (
“defy the Legislature’s clear intent in subdivision (h)’s first sentence and
contradict well-settled principles of statutory construction.†(Rajanayagam,
at p. 52.)
Defendant’s
second argument is based on equal protection, asserting that were section 4019
interpreted to apply only to crimes committed on or after October 1, 2011, it
would violate equal protection principles. Our Supreme Court rejected a similar argument
in People v. Brown (2012) 54 Cal.4th
314, in deciding whether an earlier amendment to section 4019 “should be given
retroactive effect so as to permit prisoners who served time in local custody
before that date to earn conduct credits at the increased rate provided for by
that amendment due to a state fiscal emergency.†(People
v. Ellis (2012) 207 Cal.App.4th 1546, 1550.) The Brown
court explained “the important correctional purposes of a statute authorizing
incentives for good behavior [citation] are not served by rewarding prisoners
who served time before the incentives took effect and thus could not have modified
their behavior in response. That
prisoners who served time before and after former section 4019 took effect are
not similarly situated necessarily follows.â€
(Brown, at pp. 328-329.) The Supreme
Court held the equal protection clauses of the federal and California
Constitutions did not require retroactive application of the amendment. (Id.
at p. 318.)
For these
reasons, the trial court properly awarded defendant conduct credit based on the
formula in effect when he committed his crimes.
DISPOSITION
The
judgment is affirmed.
ROBIE , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
At trial, S. initially denied
that defendant hit her but admitted that she told police he had. She also testified she could not remember
what happened that night. When the
People showed her pictures of her injured face, S. testified she “guess[ed]â€
defendant hit her. She admitted she
“[w]ould . . . rather not testify about this incident.â€
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Further section references are to
the Penal Code.
