Opinion
F073482
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MELISSA RAE HENSLEY, Defendant and Appellant.
Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, and Amanda D. Cary, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tuolumne Super. Ct. No. CRF45867)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge. (Retired Judge of the Tuolumne Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.) Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Meehan, J. and Ellison,† J.
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INTRODUCTION
Appellant/defendant Melissa Hensley was convicted of felony battery causing serious bodily injury (Pen. Code, § 243, subd. (d)), based on an incident where she attacked a neighbor and repeatedly hit the neighbor in the head with a rock. She was placed on probation.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the court improperly permitted the investigating deputy to testify that the victim's trial testimony was consistent with her statements shortly after the incident. Defendant further contends the prosecutor committed misconduct by misstating evidence in closing argument. We order the correction of the minute order and otherwise affirm.
FACTS
Morgan Abell lived in a large apartment complex in Tuolumne County with her two young children. Abell ran a child care center in her apartment.
E.N. and defendant were the parents of three young daughters and lived in the same apartment complex. However, defendant was not living with E.N. and the children from August to November 2014. During defendant's absence, Abell helped E.N. take care of his three daughters. She regularly took care of them, took them to school, and often cared for them in the evenings. Abell testified the three girls were friends with her own children, all of whom were under the age of five years. Abell testified the three girls bonded with her and occasionally said they wished Abell were their mother. Abell never told defendant that her children made these statements because she did not want to hurt defendant's feelings.
In November 2014, defendant returned to live with E.N. and their three daughters in the apartment. Shortly after defendant returned, one of defendant's daughters wanted Abell to take her home from school. Abell told the girl that she could not take them home anymore and said she would let defendant know. Defendant learned about the contact, became very upset, and confronted Abell in the apartment complex's parking lot. Defendant told Abell that she did not want her to pick up the children from school anymore, she needed to mind her own business, and to stay away from her daughters.
About two weeks later, Abell saw one of defendant's daughters talking to her own daughter through their apartment's window. Abell told defendant's daughter that she needed to go back home to her mother. A short time later, defendant called Abell's cell phone. Defendant was screaming and yelling at Abell, and told her that she "better not talk to her kids."
Abell hung up on defendant. "And the next thing I know, [defendant] was beating on my door, and I told her I would not open the door." Abell spoke to defendant through the window and told defendant that " 'this is not okay. You need to stop.' " Defendant left.
Morgan Standars was the manager of the apartment complex and lived on the premises. Standars heard about defendant's verbal altercations with Abell. Defendant told Standars that she had " 'exchanged words' " with Abell because she " 'was talking to my children.' " Defendant asked Standars to tell Abell to stay away from her; she did not say that she wanted Abell to stay away from her children. Defendant also told Standars that if Abell " 'comes in my area, I'm going to get her.' " Standars testified that defendant "had this thought in her head that if [Abell] came in her common area around her house, that she could defend that in any way...." Standars warned defendant that she would be evicted if she was arrested on the property.
Abell tries to return defendant's kitten
On the evening of December 4, 2014, Abell was leaving her apartment to go to the gas station when she saw a very small kitten by her door. Abell knew the kitten belonged to defendant's daughters and was an "inside" pet. Abell was worried the kitten might run away, so she decided to pick it up and take it back to defendant's apartment. She intended to leave it in front of defendant's door.
Abell walked to defendant's apartment. She was holding her purse, jacket, and the kitten. When she reached defendant's apartment, she saw defendant sitting on the outside stairs with a neighbor, Angel. Abell testified defendant and Angel were talking about how defendant had just gotten back from a bar.
Abell testified defendant saw her and said," 'Who the f[**]k are you?' " Defendant also said, " 'What the f[**]k are you doing here?' " and " 'What the f[**]k do you want?' " Abell testified defendant was very hostile, and she thought defendant was under the influence.
Abell testified she identified herself by name, and told defendant that she just wanted to return the kitten because it had been at her apartment. Abell tried to put the kitten down, and Angel told defendant to get the cat. Defendant yelled at Abell and told her not to put down the kitten. Defendant walked down the stairs toward Abell and kept yelling at her. Abell told defendant that there was no reason for them to fight, and they should just try to get along since their children were in the same school.
Defendant attacks Abell
Abell testified that defendant grabbed her hair and hit her in the face. Abell lost her balance and dropped everything from her hands. Abell fell backwards and defendant tackled her onto the ground. Abell landed on her back, into an area where there were dirt and rocks. Defendant got on top of Abell. She held onto Abell's hair with one hand, repeatedly hit the left side of Abell's head with her fist, and delivered "very hard punches."
Abell screamed hysterically, yelled for help, and pleaded with defendant to stop. Abell testified that she saw defendant reach for something. Defendant picked up a rock, and repeatedly hit Abell on the side of her head with the rock. Abell testified the blows were so intense that she thought her skull was being smashed. Abell did not hit defendant back, and tried to use her arms and legs to push defendant off her.
Abell screamed for Angel to help her but Angel did not intervene. As defendant continued to hit her, Abell repeatedly said, " 'Oh, God.' " Defendant told Abell, " 'You better pray to God because you're going to meet him here in a few minutes,' " and continued to hit her in the head with the rock. Abell was terrified that defendant was going to kill her and thought she was going to die. Abell testified everything became "a heated blur."
Eventually, defendant's stepson and a neighbor arrived and pulled defendant away from Abell. Another neighbor, Liz, helped Abell get up from the ground and dragged her across the parking lot. Defendant ran after Abell and Liz, and screamed, " 'You're not dead yet, bitch. I have a bigger rock to finish you off.' " Liz blocked defendant from getting to Abell.
Abell testified she was very disoriented. Liz took her to the apartment of another neighbor, who wiped blood off her lip, put a bag of frozen peas on her face, and called 911.
Defendant's statements to the manager
Morgan Standars was in her own apartment and did not see the incident. Shortly after the assault occurred, tenants called Standars and told her what happened. Standars was about to head to the scene when defendant appeared at her apartment. Standars testified she asked defendant, " 'Did you F her up?' " Defendant said, " 'Yes, I F'd her up.' "
Standars contacted Abell, who was crying and upset. She was holding her head, bleeding and looked "pretty yucky." As Standars spoke to Abell, defendant was outside her apartment and yelling that she was going to call the police because Abell "came into her area and ... she had rights to protect her area."
Abell's injuries
Around 6:46 p.m. Deputy Scott Meyer of the Tuolumne County Sheriff's Department responded to the dispatch, arrived at the apartment complex, and met with Abell. Meyer determined the incident had occurred just minutes earlier. Meyer testified that Abell was upset, and her forehead was protruding beyond its normal size, the left side of her face and her left ear were pretty swollen, and her face was red. Abell gave a statement about "Melissa."
Deputy Meyer testified he asked Abell if she needed medical attention. Abell said she did not know. Meyer called for an ambulance on his radio. The paramedics arrived shortly after Meyer's call and evaluated her. Abell testified that the police and an ambulance arrived, and she was taken to the hospital in the ambulance.
Dr. Blake Cleveland treated Abell in the hospital's emergency room. Abell reported that she had been hit in the head multiple times with a rock, and said she was not sure if she had lost consciousness. She was brought to the hospital in an ambulance with "C-spine precautions," and complained of neck and bilateral shoulder pain.
Dr. Cleveland observed swelling around Abell's left orbit and eyebrow, and a small abrasion and dried blood on her upper lip. Abell also had a contusion and trauma on top of her left ear. Dr. Cleveland testified these injuries were consistent with being hit in the head with either a fist or a rock, depending on how the rock was used and the force of the blows.
Dr. Cleveland testified that based on Abell's report about how she was injured, he evaluated her for any signs of slurred speech, memory loss, or altered mental status. He needed to determine if she had suffered any kind of significant brain injury from the facial blows and if she needed "higher neuro/surgical or neurologic care." A significant loss of consciousness increased the possibility of a traumatic brain injury.
After his evaluation, Dr. Cleveland diagnosed Abell with a head injury, a mild concussion, facial contusions/bruises, and a loss of consciousness of unknown duration. She reported a sensation of nausea, consistent with having a concussion. While Abell reported that she did not lose consciousness, Dr. Cleveland determined that she lost consciousness at some point, consisting of either seconds or minutes, because she was unable to relate the complete events of the incident. The loss of consciousness could have been resulted from the direct blunt force to the head that caused the concussion. He concluded she had suffered a mild concussion because she did not have double vision, significant dizziness, difficulty standing, or vomiting. He recommended rest, but acknowledged that even a mild concussion can have lasting symptoms for several months.
Dr. Cleveland ordered CT images of Abell's brain, face, and spine. There was no evidence of a skull fracture, broken bones, or bleeding within the brain.
Defense counsel cross-examined Dr. Cleveland about the nature and extent of Abell's injuries, but did not introduce any independent evidence to contradict his testimony.
The investigation
While Abell was being treated at the hospital, Deputy Meyer continued his investigation at the apartment complex. Morgan Standars approached him and told him about the fight. Meyer went to the scene and found several neighbors in the area. He asked who "Melissa" was, and defendant identified herself.
Deputy Meyer asked defendant what happened. As defendant talked to Meyer, he smelled the odor of an alcoholic beverage from her. Defendant said she had been hit in the head. Meyer looked at her head and did not see any signs of an injury. Meyer asked defendant if she needed medical attention and she said no.
Abell was at the hospital for about three hours and then returned to her apartment. Deputy Meyer met with Abell and took a longer statement. He also took photographs of her facial injuries and testified the swelling in Abell's face was more significant than depicted in the pictures.
Abell testified that she had a head concussion and a very bad black eye that appeared the day after the assault; it lasted two to three weeks or even longer. Her facial swelling became worse a couple of days after the incident. The left side of her face was twice its regular size and there was swelling behind her left ear. The facial swelling became worse for several days after the assault.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified that on December 4, 2014, she was at home with her daughters. She left her apartment to pick up a pizza for dinner for her family and some guests. She denied that she had been drinking or went to a bar.
Defendant testified that when she returned home, one of her guests started talking about defendant's missing teenage son, and the conversation made defendant become emotional. Defendant stayed at home and took a shower while the rest of her family and her guests went out. After she showered, defendant sat on the stairs in front of her apartment to smoke a cigarette. Her neighbor, Angel, came out and tried to comfort defendant because she was crying.
Defendant testified she saw someone in the parking lot bend down and pick up her cat. Defendant testified this same person walked up to where she was sitting with Angel. The person was wearing a very large jacket and a beanie partially pulled down over her eyes. The person was holding defendant's cat. Defendant did not recognize this person because she was so distraught, and asked who it was. The person "kept trying to engage in an argument with me." The person "couldn't figure out why I did not want her around my children or my family." Defendant was very polite and repeatedly asked the person to leave.
Defendant testified the person walked closer and she recognized Abell. Defendant felt threatened and "cornered" because Abell "kept persisting forward and getting into my personal space. Defendant repeatedly told Abell to leave and get out of her personal space, and that she did not want to argue with Abell. Abell was "very persistent and would not stop," and kept walking closer.
Defendant intended to go back to her apartment and call the police. Defendant claimed Abell was standing directly in front of the stairs and blocked defendant's ability to go to her apartment. Defendant pushed Abell away from her because she was afraid for her own safety. Defendant testified that Abell "came back and struck me in the head with what I believed was a rock." Defendant did not see the rock, but thought Abell picked it up at the same time she picked up her cat in the parking lot.
Defendant testified her eyes became blurry and she stumbled back a little bit, and she felt her body "lunge forward." Defendant punched Abell and they fell down. Defendant was on top of her, and "I continually kept swinging [at] her, punching her in the side of the head." Abell pulled defendant's hair, ripped her shirt, and tried scratching out her eyes. "It was a pretty nasty fight."
On direct examination, defendant testified that Abell did not scream for help or ask defendant to stop. On cross-examination, defendant admitted Abell asked Angel to stop the fight and get defendant off her.
Defendant thought the fight lasted between 30 seconds and one minute. Defendant admitted that she punched Abell approximately 10 to 15 times, but that Abell hit her about the same number of times. Defendant denied picking up a rock or hitting Abell with a rock. She also denied saying anything to Abell about meeting God, trying to kill her, or that she was getting a bigger rock to finish the job. Defendant's stepson pulled her off Abell.
Defendant testified she went to her apartment and put on a sweater to cover her torn shirt. Defendant called the police and went to the manager's apartment. Defendant told the manager that "we did get into a fight and that I did beat her up," because "I felt like what I had done was wrong." Defendant did not tell the manager that Abell was the aggressor because the manager was very good friends with Abell. Defendant testified that she had previously complained to the manager to keep Abell away from her home because Abell "had actually opened up my front door and invited herself in without being told to come in."
REBUTTAL
Deputy Meyer testified in rebuttal that he spoke with defendant on the night of the altercation and gave her the opportunity to explain what happened. Defendant said that she took the cat from Abell and went back upstairs. Abell made a comment that made defendant return. Abell got into her face, defendant pushed her away, they wrestled and fell to the ground, and defendant blacked out and could not remember what else happened.
Deputy Meyer testified that defendant did not report that she saw Abell pick up the cat in the parking lot; that she felt threatened by Abell; that Abell tried to scratch out her eyes; or give the other details as she described in her testimony.
Deputy Meyer took photographs of defendant that evening, and there were no signs of any injuries or torn clothes. There was dirt on her knees, which Meyer believed was consistent with Abell's story that defendant was on top of her in the dirt area.
Procedural history
Defendant was charged with count I, assault with a deadly weapon, a rock (§ 245, subd. (a)(1)); count II, battery causing serious bodily injury (§ 243, subd. (d)); and count III, criminal threats (§ 422, subd. (a)). As to count I and III, it was alleged defendant personally inflicted great bodily injury on Abell during the commission of the charged offense (§ 12022.7, subd. (a)).
After a jury trial, defendant was convicted of count II, battery causing serious bodily injury. She was found not guilty of counts I and III.
The court suspended imposition of sentence and placed defendant on formal probation for five years, subject to various terms and conditions, including service of six months in county jail with credit for time served of 27 days.
DISCUSSION
I. Deputy Meyer's Testimony was Properly Admitted
Defendant contends the court improperly overruled defense counsel's objections to a portion of Deputy Meyer's testimony, when he said that Abell's trial testimony was consistent with her prior statements to him. Defendant argues Meyer's testimony constituted an improper lay opinion, bolstered Abell's credibility, and invaded the province of the jury as the ultimate fact finder.
Defendant asserts the court's alleged evidentiary error was prejudicial because the case was close, defendant's trial testimony established that Abell was the aggressor, Meyer's opinion testimony improperly bolstered Abell's credibility and undermined defendant's claim of self-defense, and supported the prosecution's claim that defendant was the aggressor and Abell was seriously injured.
A. Background
At trial, Abell was the first prosecution witness and described how defendant attacked and hit her. Thereafter, Deputy Meyer testified about his investigation. Meyer testified that he interviewed Abell after she returned from the hospital, about three hours after the incident.
The following sequence occurred during Meyer's direct examination testimony:
"Q. You heard Miss Abell's testimony ...?
"A. Yes.
"Q. With regards to her recounting of what happened versus what you have in your report, were there any significant differences?
"[DEFENSE COUNSEL]: Objection, calls for speculation as to what 'significant' is.
"THE COURT: So—I think that significant means what it means, so I'll allow it, if that is the only objection.
"[Deputy Meyer]: Um, nothing completely off from what she had told me initially."
The prosecutor asked Deputy Meyer if Abell told him that after the assault, defendant said, " 'You're not dead. I should have gotten a bigger rock and finished the job.' " Defense counsel raised a hearsay objection. The court overruled the objection. Meyer reviewed his report and testified Abell told him about this statement.
On cross-examination, defense counsel reviewed Deputy Meyer's report and noted that he did not write that the photographs did not accurately depict Abell's injuries, even though he had just testified to that fact. Meyer agreed that he did not include that comment about the photographs in his report. Defense counsel also noted that Meyer's report quoted Abell as saying that she believed defendant hit her with something other than her fist, it felt like a hammer, and she did not actually see the object that defendant used to hit her. Meyer agreed that Abell made these statements during the interview.
On redirect examination, Deputy Meyer testified he remembered that Abell had significant facial swelling that was not captured by the photographs, even though he did not make that comment in his report. Meyer also testified that Abell said she thought defendant hit her in the head with a "boulder." Meyer examined the area where the incident occurred, and saw decorative rocks in the dirt area where Abell had been knocked to the ground.
B. Analysis
Defendant contends the court improperly permitted Deputy Meyer to testify to the ultimate issue of Abell's truthfulness and credibility. "We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
Defendant asserts that to the extent that defense counsel failed to preserve her objection to Deputy Meyer's testimony, then counsel was prejudicially ineffective. We find defense counsel's objection was appropriate and preserved the evidentiary issue.
" 'Relevant evidence' means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The veracity of those who report crimes to the police is not a proper subject of expert testimony. (People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.) Similarly, a lay witness's opinion about the veracity of another person's particular statements is inadmissible and irrelevant on the issue of the person's credibility because it invades the province of the jury as the ultimate fact finder. (People v. Melton (1988) 44 Cal.3d 713, 743-744; People v. Zambrano (2004) 124 Cal.App.4th 228, 239-240.)
However, a witness can be asked about another person's demeanor, motives, and background, as well as consistent and inconsistent statements given on other occasions, and whether the person's statements had the "essential 'ring of truth,' " which then leaves "the factfinder free to decide [the person's] credibility for itself ...." (People v. Melton, supra, 44 Cal.3d at pp. 744-745.)
In this case, the prosecutor did not ask Deputy Meyer whether he believed Abell was being truthful in her trial testimony or her pretrial statements. Meyer did not express an ultimate opinion on Abell's truthfulness or vouch for her credibility. Instead, Meyer testified about the entirety of Abell's statements about the incident and his observations of her physical appearance.
The court properly overruled defense counsel's objection to the prosecutor's question to Deputy Meyer. The question was limited to his personal knowledge about whether Abell's trial testimony was consistent or inconsistent with the prior statements she made to him shortly after the crime. Meyer's response was that there was nothing in her trial testimony "completely off from what she had told me initially." In response, defense counsel ably obtained Meyer's admissions that there were some inconsistencies between Abell's prior statements and her trial testimony, and that Meyer failed to include certain things in his report.
Moreover, the jury was instructed that it "alone, must judge the credibility or believability of the witnesses." While the prosecutor argued in closing that Abell was credible, defense counsel challenged inconsistencies in her story and asserted that defendant's account was more credible and Abell was the aggressor.
We find that Deputy Meyer's testimony did not amount to an inappropriate lay opinion on the ultimate issue of the witness's credibility or truthfulness.
II. The Prosecutor's Closing Argument
Defendant argues the prosecutor committed prejudicial misconduct in closing argument by referring to facts not in evidence that an emergency medical technician decided to transport Abell to the hospital.
A. Background
In his opening statement, the prosecutor stated that Abell would testify that "it was suggested to her very strongly that she go to the hospital, and that she did. I can't remember if it was by ambulance or not."
At trial, Deputy Meyer testified that when he arrived at the scene, Abell was upset, and her forehead was protruding beyond its normal size, the left side of her face and her left ear were pretty swollen, and her face was red.
Deputy Meyer testified he asked Abell if she needed medical attention. Abell said she did not know. Meyer testified he called for an ambulance on his radio, and the paramedics arrived shortly after his call and evaluated her.
Abell testified that the police and an ambulance arrived, and she was taken to the hospital in the ambulance. Thereafter, Dr. Cleveland testified about Abell's injuries.
The prosecutor made the following statements in closing argument:
"[THE PROSECUTOR]: So what about her injuries? Well, what do you know? That this neighbor ... first thing she does is gets a bag of peas
out and puts it on her face, all right? I don't know what to make of that except to tell you the doctor told you if you apply ice or something, it is liable to keep the swelling down. Something to think about when you look at the pictures.
"Deputy Meyer sees injuries on her. A camera doesn't always show what the eye sees, and we'll talk about that.
"So the emergency personnel transport her. Somebody in that E.M.T. thing says, 'You should go to the hospital.'
"[DEFENSE COUNSEL]: Objection, Your Honor. There is no evidence of that.
"THE COURT: I heard testimony about that.
"[THE PROSECUTOR]: Dr. Cleveland treats her for her injuries, and his diagnosis is concussion...." (Italics added.)
The prosecutor continued with a discussion of Dr. Cleveland's testimony about Abell's injuries, and pointed out that "nobody else came in here" and disputed the physician's testimony about Abell's concussion and facial injuries.
B. Analysis
"A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact. [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 711; People v. Edwards (2013) 57 Cal.4th 658, 734.)
"A prosecutor's 'argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom.' [Citation.]" (People v. Edwards, supra, 57 Cal.4th at p. 736.) In evaluating a misconduct claim in closing argument, we must determine whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion. (People v. Cash (2002) 28 Cal.4th 703, 733.)
Defendant asserts the prosecutor relied on facts not in evidence in his closing argument, and improperly suggested to the jury "that a person with medical training had concerns about Ms. Abell's health, and recommended urgent medical attention. This fact unfairly supported the prosecution's case that Ms. Abell had suffered serious bodily injury."
There is a strong inference that the responding paramedics decided that Abell needed medical attention at the hospital. Deputy Meyer testified that when he arrived at the apartment complex, he observed Abell's facial injuries and asked if she needed medical attention. Abell said that she didn't know. Meyer testified he decided to call for an ambulance, and the paramedics arrived a short time later and evaluated her. Abell testified that she went to the hospital in the ambulance, thus raising the inference that the paramedics made that decision.
Nevertheless, to the extent the prosecutor committed misconduct by stating that a paramedic or emergency medical technician prevailed upon Abell to go to the hospital, there is no possible prejudice. The prosecutor's brief misstatement only addressed who decided that Abell should be taken to the hospital, and did not extend to the nature or extent of her injuries. It is undisputed that Meyer decided to call the paramedics, the paramedics responded to the apartment complex, and Abell was taken to the hospital in an ambulance. Dr. Cleveland testified that based upon his report, Abell arrived at the hospital in an ambulance with "C-spine precautions" and complained of neck and bilateral shoulder pain.
Abell testified that defendant repeatedly hit the left side of her head with her fist and then a rock, and that she was disoriented when her neighbor dragged her away and helped her. Deputy Meyer described the severity of Abell's facial swelling when he first arrived at the apartment complex. Dr. Cleveland similarly testified to her facial swelling, his belief that she lost consciousness for an undetermined period of time, and his diagnosis of a mild concussion. The prosecution also introduced the photographs of Abell's face that were taken after she returned from the hospital. The defense contested the nature of Abell's injuries, but those challenges were not undermined by the prosecutor's brief statement that an emergency medical technician or paramedic decided to take Abell to the hospital.
Given our resolution of defendant's evidentiary and misconduct contentions, we further reject defendant's assertion about the cumulative impact of these alleged errors. --------
III. Conduct Credits
After defendant was convicted, the court suspended imposition of sentence and placed defendant on formal probation for five years, subject to various terms and conditions, including service of six months in county jail with credit for time served of 27 days.
Defendant contends, and the People concede, that she should have also received 26 days of conduct credit, in addition to 27 days of actual credit, for a total of 53 days.
The People further note the minute order erroneously states that defendant was convicted after a guilty plea instead of a jury trial.
The minute order must be amended to include the 26 days of conduct credit and to correct the notation that defendant was convicted after a jury trial and did not enter a guilty plea.
DISPOSITION
The minute order shall be amended to reflect that defendant did not enter a guilty plea but was convicted after a jury trial.
The minute order shall also be amended to show that defendant has 26 days of conduct credit, in addition to 27 days of actual credit, for a total of 53 days.
In all other respects, the judgment is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.