Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F3655
NICHOLSON, J.
The jury convicted defendant Malcolm Terrill Cooper of domestic violence with a prior conviction, and assault by means likely to cause great bodily injury, and found he had served two prior prison terms. (Pen. Code, §§ 245, subd. (a)(1), 273.5, subds. (a) & (e), 667.5, subd. (b).) The trial court sentenced defendant to prison for seven years, and defendant timely filed this appeal.
Subsequent undesignated references to sections are to the Penal Code.
Defendant contends his confrontation clause rights were violated by the manner in which his prior prison terms were proven, the trial court improperly admitted evidence of his prior acts of domestic violence, and two fees must be stricken because the sentence on the count on which they are based was stayed (§ 654). We modify the judgment to award defendant additional presentence conduct credits, but otherwise affirm.
BACKGROUND
The victim (L.H.) testified she had known defendant for eight years. In February 2008 she allowed him to stay with her. They soon began a sexual relationship. After a couple of months, she gave him two weeks to move out, because he was not looking for a job.
On the final date, April 25, 2008, the victim told defendant that he had to move out. He got mad, but did not begin to pack his things, which made her mad. While they were outside and she told him he needed to leave, he asked that they go into the bedroom to talk. Defendant locked the door, turned up the television, took off his belt and began beating the victim. This surprised and scared her. As she described it, after a while, after she had been screaming and was on the ground, “he handed me a knife and told me to defend myself.” It looked like a steak knife, and she tossed it away. He resumed beating her. After he stopped, she could not find her phone or her keys, and he refused to give her the phone. After defendant fell asleep, she put her children to bed and ran to a neighbor’s house to get help. Her sister-in-law arrived, then her father, and finally sheriff’s deputies.
The victim testified the beating lasted 30 to 45 minutes. She admitted writing defendant a letter a few days later. The letter stated she had looked through his cell phone, found out that he was spending time with “Kayla, ” and ended: “What happened to you being real, [you’re] real nasty. Don’t worry I know her age also. Hope you have a nice life.” She testified she did not see defendant’s cell phone until after he attacked her, and that she had not confronted defendant about “Kayla.” The cell phone contained pictures of defendant having oral sex with a female in the victim’s car, which made the victim angry. After defendant was arrested, a woman named Kayla began calling the victim, and when the victim sent her one of the pictures, Kayla confirmed it was her. A friend of defendant’s told the victim that Kayla was only 17. On the date and time shown in the picture, defendant was supposed to pick the victim up from work, but left her “standing out in the rain” and later claimed he had run out of gas.
The victim’s neighbor (Rhiannon X.) testified that a little after 9:00 p.m., the victim came to her house, with a black eye, crying and hysterical, and asking for help.
The victim’s sister-in-law (V.J.) found the victim still “very shaky.” The victim reported that she had asked defendant to leave, and then he “repeatedly hit her with the belt.” The victim had visible welts on her back, chest, buttocks and legs, and a mark on her cheek.
The victim’s mother (Kathy H.) testified the victim had marks from her face to her knees, and she identified photographs she took of her daughter the next morning.
Shasta County Deputy Sheriff Eric Magrini testified a call came in at 9:22 p.m., he was dispatched at 9:52, and he arrived at the scene at 10:06 p.m. The victim appeared frightened and distraught, and reported that defendant had hit her with a belt. Deputy Magrini saw “striations” on her body that were consistent with belt strikes. Deputy Magrini identified photographs he took, depicting the victim’s injuries. When officers woke defendant up to discuss the victim’s claim, he denied knowing what had happened to her, and later denied hitting her with a belt. Defendant had no visible injuries and did not complain of any injuries. Defendant never claimed that the victim attacked him.
Two witnesses testified to acts of domestic violence perpetrated by defendant in the past.
C.L. testified that in 2002 she lived with defendant for about two months, and they had a relationship for about a year. On October 30, 2002, she had been to a nightclub with a friend, and returned home after closing hours, about 2:30 to 3:00 in the morning. She told defendant she had cheated on him, and he pushed her on her chest, knocking her down. He then punched a hole in a wall. C.L. had a swollen lip from this incident. She did not remember other details that appeared in a report about this incident, but testified she told the truth when she was questioned by a Redding police officer that night. She admitted she had been intoxicated.
Officer Jay Guterding testified he had taken C.L.’s statement that morning, and she described defendant sitting on her on a couch and backhanding her in the face.
The trial court took judicial notice of defendant’s misdemeanor conviction for domestic violence (§ 273.5, subd. (a)) resulting from the C.L. incident.
Brandi P. testified she had been in a relationship with defendant for about six years, and they had a daughter together, born in 1997. They lived together for about six months, ending around June or July 2001. On August 31, 2001 -- after they lived together -- they were arguing at an apartment about their daughter. Brandi did not remember many details, but remembered being shoved, and being injured on her side, knee and leg. She remembered running downstairs and telling a friend to take her daughter. Defendant then pushed Brandi to the floor, and pushed Brandi’s friend, who was holding the child. Brandi identified photographs of her injuries. Brandi’s friend testified she heard defendant and Brandi arguing, saw Brandi hitting defendant from behind, and heard Brandi tell defendant that he would not take their daughter. When Brandi’s friend tried to intervene, and held the couple’s daughter, “that’s when the defendant grabbed my arm, shoved me up against the wall, took his daughter and said, ‘If you call the police, I will kill you.’” Brandi’s friend was hurt and frightened, and did not contact the police until the next day.
Former Redding police officer David Schulz testified he spoke with Brandi and her friend on September 1, 2001. Brandi reported that defendant slapped her in the face, shoved her into a wall “several times, ” threw her to the ground “several times, ” and threatened to kill her if she went to the police. Former officer Schulz had taken photographs of Brandi’s injuries, and identified them in court.
The trial court took judicial notice of defendant’s misdemeanor conviction for domestic violence (§ 273.5, subd. (a)) resulting from the incident with Brandi.
The defense called defendant’s parole agent, Bryan O’Connor, who testified he spoke with the victim on April 25, 2008, and she told him defendant handed her a knife “and said, ‘Defend yourself, cunt.’” Later, O’Connor testified the victim reported defendant turned the television up and then beat her with a belt after he gave her the knife. When O’Connor spoke with defendant, defendant denied striking the victim with a belt and did not claim he acted in self-defense.
Defendant testified he had two felony convictions, a 2003 conviction for pimping, and a 2005 conviction for possessing cocaine base, or “crack cocaine, ” for the purpose of sale. He testified that once he and the victim began having sex, she became possessive and jealous, and would go through his things, including checking his cell phone. On the night in question, she quizzed him about who he had been with. They went into the bedroom, and she asked him about pictures on his phone of a girl “giving someone oral copulation” but he claimed it was not him, and “my excuse was someone sent me the pictures, or I got them off the web, or something like that.” The victim left the bedroom, returned with a “Ginsu” knife, “like a butcher knife” with a 12-inch blade, and told him she hated him and was going to kill him. He took off his belt to protect himself, and struck her with it. This enraged her and he swung the belt more times, hitting her until she dropped the knife. He embraced her, calmed her down, and they had “casual sex.” “Then, next thing I know, the sheriffs are waking me up.” Because of his past, he did not tell the peace officers what had happened.
The defense argued the victim became mad because she thought defendant had cheated on her, and he hit her solely in self-defense. The defense argued the victim’s injuries did not match her claim that she had been beaten for 30 minutes, or match her description of the beating.
DISCUSSION
I
The jury found defendant had served two prior prison terms, stemming from a Sacramento County conviction and a Shasta County conviction. On appeal, defendant contends that section 969b, allowing the introduction into evidence of a so-called “prison packet” to prove prior convictions and prison terms (see Simons, Cal. Evidence Manual (2008-2009) § 2:103, pp. 182-183), is unconstitutional, both facially and as applied, because it transgresses his Sixth Amendment confrontation clause rights, and therefore no substantial admissible evidence supports the prior prison term findings. We disagree.
Section 969b provides in full: “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.”
The prison packet in this case, exhibit 8 at trial, is a set of Department of Corrections and Rehabilitation documents, with a signed certification by a case records analyst, stating that the documents “are true and correct copies of documents on file in this office.” It includes an inmate “Chronological History, ” an abstract of judgment from Shasta County reflecting defendant’s conviction and sentence for possession for sale of cocaine base, as well as a copy of a Sacramento County abstract of judgment reflecting defendant’s conviction and sentence for receiving support from prostitution.
Defendant did not object to the prison packet.
Despite the failure to object, we elect to address defendant’s claims on the merits, in part because of his contention that an intervening change in the law occurred between his trial and this appeal. (Cf. People v. Morris (2008) 166 Cal.App.4th 363, 367 (Morris).)
Randy Abney, a parole officer, testified about how the prison system keeps inmate records, and described the meaning of various entries in the prison packet.
The trial court took judicial notice of certain court records, including the fact that defendant’s Shasta County conviction was later changed: Defendant’s plea was vacated and he entered a new plea, admitting possession for sale of methamphetamine (Health & Saf. Code, § 11378).
In his briefing, defendant overlooks the partial use of court records to prove the enhancements in this case. A prosecutor may seek to prove a prison term by such documents, without using a prison packet. (See 3 Witkin & Epstein, Cal. Criminal Law (3d. ed. 2000) Punishment, § 378, pp. 503-505.) However, because we find no error in the use of a prison packet, we need not consider the issue of harmless error.
On appeal, defendant contends he had the right to confront “all witnesses against him, including those witnesses who prepared the documents within” the prison packet. In a related claim, he asserts that the prison packet statute, section 969b, is unconstitutional because it allows the introduction of a prison packet in violation of a defendant’s confrontation clause rights. We reject the premise of both of these claims: Neither section 969b nor its application to this case transgressed defendant’s confrontation clause rights.
As this court said long ago: “Despite its hearsay character and notwithstanding the unavailability of witnesses, documentary proof of a prior conviction does not violate the confrontation guaranty. [Citations.] The rationale is that the confrontation rule permits some limited varieties of hearsay evidence [citation] including public documents [citations].” (People v. Lizarraga (1974) 43 Cal.App.3d 815, 820.)
Under current confrontation clause jurisprudence, “the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.” (People v. Geier (2007) 41 Cal.4th 555, 597 (discussing Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]).)
A post-Crawford California decision has rejected the claim that the prison packet statute allows “testimonial” evidence implicating the confrontation clause: “‘[R]ecords or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which [defendant] has been imprisoned’ (Pen. Code, § 969b) are prepared to document acts and events relating to convictions and imprisonments. Although they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. Therefore, these records are beyond the scope of Crawford, and the court properly admitted them and considered them for the statutory purposes.” (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 (Taulton).)
We agree with this reasoning. (See also Morris, supra, 166 Cal.App.4th at pp. 367-373.) Contrary to defendant’s view, nothing in more recent United States Supreme Court jurisprudence changes this conclusion. In the high court’s latest decision interpreting the confrontation clause, Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314], the court stated: “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because -- having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial.” (Id. at p. ___ [174 L.Ed.2d at p. 329].)
Because the documents within a prison packet are created “to document acts and events relating to convictions and imprisonments, ” the fact they may also be used to prove a prior conviction or prison term does not make them “testimonial” evidence. (Taulton, supra, 129 Cal.App.4th at p. 1225; see Morris, supra, 166 Cal.App.4th at pp. 370-371.)
Accordingly, the trial court properly admitted the prison packet pursuant to section 969b, and the statute is not unconstitutional, because the records it addresses are not “testimonial” and do not implicate the confrontation clause.
We need not address the Attorney General’s alternate claim that the Sixth Amendment does not apply to proof of prior convictions or prior prison terms.
II
The People filed a written in limine motion to introduce evidence of defendant’s past acts of domestic violence, and defendant filed written opposition. In part, defendant argued the prior incidents were so minor that they did not fit the definition of domestic violence, because one -- involving Brandi -- resulted in “some bruising” and the other -- involving C.L. -- resulted in “a dot of blood on the inside of the mouth.” Defendant argued that allowing the jury to infer defendant had a propensity to commit domestic violence based on these incidents would impose “extreme consequences for minor acts that occurred in 2001 and 2003.”
The trial court excluded a 2007 incident involving a third person, B.K., but admitted the two incidents involving C.L. and Brandi, described above. As to this evidence, as well as priors sought to be used to impeach defendant, the trial court stated it “considered the evidence under [Evidence Code section] 352. I’ve done the appropriate [weighing], and I find the probative value on the priors under [Evidence Code section] 1109 outweighs any tendency to prejudice the defendant. There’s no undue prejudice.”
On appeal, defendant contends the trial court erred in several respects pertaining to this evidence.
Defendant contends the evidence was not relevant. We disagree. Evidence Code section 1109 allows the introduction into evidence of prior domestic violence to show that a person has the propensity to engage in such conduct, and defendant does not challenge the general validity of the statute in this case. (See People v. Johnson (2000) 77 Cal.App.4th 410, 419-420.)
There is no requirement that there be a pattern of abuse pertaining to the current victim to allow the introduction into evidence of abuse of other victims, as defendant asserts. Nor is there any requirement that the same type of violence be committed. Therefore, the fact he beat the victim in this case with a belt, but pushed the prior victims or hit them with his fist, does not establish a lack of relevance.
Defendant contends the evidence of prior abuse was unduly prejudicial. However, defendant merely reargues the relevant factors and fails to accord appropriate deference to the trial court’s decision.
Evidence Code section 352 provides: “The court in its discretion may exclude 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.”
“‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Evidence Code section 352 gives the trial court discretion to weigh possible prejudice against the probative value of evidence. “The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion.” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
The evidence was not time-consuming. Defendant asserts the evidence consumed “over one[-]half of the trial.” This is not accurate. The evidence regarding C.L., including her testimony, an officer’s testimony and judicial notice of defendant’s conviction, occupies about 17 pages of transcript. The evidence regarding Brandi including her testimony, a former officer’s testimony, Brandi’s friend’s testimony, and judicial notice of defendant’s conviction, occupies about 29 pages of transcript. The total of these incidents occupies less than 50 pages of transcript. The victim in this case was on the stand for over 50 pages of transcript, and other witnesses testified about the current offense, also for over 50 pages of transcript.
The evidence about both prior incidents was straightforward and would not likely be confusing, and the trial court gave a pattern instruction explaining the limited use of this evidence, CALCRIM No. 852.
The incidents were not remote. The last incident occurred in 2002, about six years before the current incident, and defendant had been in prison for some of the intervening time.
Neither of the prior incidents was inflammatory in comparison with the current incident; indeed, in the trial court, defendant argued they should be excluded in part because they were so minor. (Cf. People v. Harris (1998) 60 Cal.App.4th 727, 737-738 [past offense “inflammatory in the extreme” in comparison to current offenses].) And the fact the jury learned defendant already had been convicted in both prior incidents further lessened any possible prejudice. (People v. Ortiz (2003) 109 Cal.App.4th 104, 118; People v. Kelley (1997) 52 Cal.App.4th 568, 579.)
Finally, defendant contends the trial court failed to exercise its discretion. The trial court excluded a further incident, and stated on the record that it had weighed the probative value of the evidence admitted against its prejudicial effect. The record thus shows the trial court conducted the appropriate analysis; no more was required. (See People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.)
Accordingly, defendant has failed to show that the trial court abused its discretion in admitting this evidence.
Moreover, prejudice flowing from a misapplication of Evidence Code section 352 is evaluated under the state-law standard. (People v. Marks (2003) 31 Cal.4th 197, 226-227.) Given the strong evidence in this case, including corroborating photographs, and the implausible claim of self-defense, it is not reasonably probable that, absent the uncharged act evidence, defendant would have obtained a better result. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
The trial court imposed a total sentence of seven years for count 1 and the prior prison terms, and imposed a sentence on count 2, but stayed it pursuant to section 654. The court ordered defendant to pay a court security fee of $40 pursuant to section 1465.8 -- $20 per conviction -- and a criminal conviction assessment of $60 pursuant to Government Code section 70373 -- $30 per conviction. On appeal, defendant contends the fee and assessment attached to the stayed count must be stayed because they are punitive in effect. We disagree.
In People v. Crittle (2007) 154 Cal.App.4th 368, we held: “Section 654, which prohibits multiple punishment for the same act or course of conduct and generally bars the use of a conviction for ‘any punitive purpose’ if the sentence on that conviction is stayed [citation], does not apply to a court security fee because that fee is not punishment. [Citation.] [¶] Accordingly, even though the trial court stayed the punishment for defendant’s robbery conviction, it was required to impose a $20 court security fee based upon that conviction. [Citation.]” (Id. at pp. 370-371.)
Similarly, contrary to defendant’s view, the criminal conviction assessment is not punitive. (People v. Castillo (2010) 182 Cal.App.4th 1410; People v. Fleury (2010) 182 Cal.App.4th 1486; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-6.) Accordingly, there is no basis to stay such assessment under section 654.
IV
The trial court awarded defendant 351 days of actual presentence custody credits, and 174 days of conduct credits.
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitled him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment applies “to acts committed before its passage provided the judgment convicting the defendant is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 4019, subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
Under the new formula, “a term of four days will be deemed to have been served for every two days spent in actual custody, ” with exceptions not applicable to this case. (§ 4019, subd. (f).) Defendant served 175 two-day periods in actual custody, each of which is deemed to be a four-day term. (See People v. Marquez (2003) 30 Cal.4th 14, 25-26 [rounding up not permitted].) For each of those 175 two-day periods, he is entitled to two days of custody credit. (§ 4019, subds. (b)(1) & (c)(1).) Consequently, defendant, having served 351 days of actual presentence custody, is entitled to 350 days of conduct credits, instead of the 174 days awarded under the prior credit formula. The judgment is modified to award defendant 351 days of actual custody and 350 days of conduct credits.
DISPOSITION
The judgment is modified to award defendant 351 days of actual custody and 350 days of conduct credits. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. The judgment is affirmed as modified.
We concur: BLEASE, Acting P. J., RAYE, J.