P. v. Nerys
Filed 3/15/07 P. v. Nerys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. THOMAS ANTHONY NERYS, Defendant and Appellant. | E038328 (Super.Ct.No. FSB032164) OPINION |
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed with directions.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald Jakob, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.
After a jury trial, defendant Thomas Anthony Nerys was convicted of one count of assault with a firearm on Johnathan Zane, one count of assault with a firearm on Gina Brown (Pen. Code,[1] 245, subd. (a)(2); counts 1 & 2), and possession of a firearm by a felon (count 3). ( 12021, subd. (a)(1).) The jury also found true the allegations that counts 1 and 2 were serious and violent felonies ( 1192.7, subd. (c) & 667.5., subd. (c)), and that defendant personally used a firearm. ( 12022.5, subds. (a) & (d)) The jury also made a special finding as to count 3 that defendant possessed the following firearms: a .22-caliber revolver, a Browning semiautomatic shotgun, and a rifle.
Defendant contends the prosecutor engaged in illegal group bias by systematically excluding a cognizable group of people involved in a spiritual prison ministry. We conclude that people who participate in a religious or spiritual prison ministry is not a cognizable group. Defendant also asserts the trial court abused its discretion in allowing testimony that defendant shot a pistol into a daybed because it was more prejudicial than probative. We find the trial court did not abuse its discretion in admitting evidence of the prior uncharged act. Finally, we agree with the parties that the abstract of judgment should be corrected to reflect that counts 2 and 3 run concurrent to count 1, and that the trial courts minute order and abstract of judgment should correctly reflect that defendant was sentenced to three years for count 2, four years for the personal use enhancement in count 2, and two years on count 3. In all other aspects however, we find no error and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant lived with his girlfriend, Elizabeth Zane (Elizabeth). On a prior occasion, Elizabeth had sustained a head injury. Elizabeths father, Jonathan Zane (Zane), and his fiance, Gina Brown (Brown), made an unannounced visit to Elizabeths and defendants apartment to discuss the incident because they suspected that defendant had caused the injury. They knocked on the door and received no response. When they knocked again, the door swung open, revealing Elizabeth standing in the apartment and defendant standing near the kitchen with an assault rifle in his hands. Defendant pointed the assault rifle at Zane and Brown and asked them what they wanted. Zane, a member of the San Bernardino County Sheriffs Rangers, recognized the gun as an assault rifle. Brown, who was familiar with guns having grown up hunting with her father, noticed that the gun looked like one used by Saddam Hussein or Patty Hearst.
Zane and Brown told defendant to put the gun down. After Zane told defendant he had come to talk, defendant raised the gun to the ceiling, away from Zane and Brown, and agreed to talk to Zane. Defendant put on some pants, left the gun in his bedroom, and went outside to speak with Zane. When they were outside, defendant put up his hands as if he was ready to fight. After Zane told defendant that he was not there to fight and only wanted to find out what happened to his daughter, their conversation came to an end.
Zane, Brown and Elizabeth left the apartment and went to Zanes office nearby. After 15 minutes, Zane and Brown returned Elizabeth to the apartment at her request. Zane and Brown then drove to the police department and filed a report against defendant.
In response to the report, several officers went to the apartment and ordered defendant and Elizabeth to come out of the apartment with their hands up. The officers searched the apartment. With Elizabeths assistance, they located underneath the bed an unloaded semiautomatic shotgun, an unloaded CO2 powered shotgun, a loaded blue steel .22-caliber revolver, and ammunition. Defendant was arrested and charged. The matter went to trial and was heard by a jury.
At trial, Elizabeth testified she owned three guns: a .22-caliber handgun, a shotgun, and a pellet gun. While defendant knew she had the guns, he never touched them. She testified that defendant never had a rifle while her father and his fiance were visiting and she denied telling the police that defendant had an assault rifle that day. She stated that if such a statement was in the police report, the police were lying.
A. 402 hearing.
After Elizabeth testified, her twin sister Emily Peterson (Peterson) took the stand. Prior to her testimony before the jury, the trial court held an Evidence Code section 402 evidentiary hearing to determine whether her testimony should be admitted. Peterson testified about an earlier incident in which she observed defendant talking to someone on the phone with a pistol in his hand and fired it twice into a daybed. Defense counsel moved to exclude evidence of defendants firing into the daybed pursuant to Evidence Code section 352. He objected that it was irrelevant and would create a mini trial on the prior firing incident. The trial court ruled that Petersons testimony was relevant because it related to the inconsistent testimony Elizabeth gave, thus denying defendants motion to exclude.
After the Evidence Code section 402 hearing, Peterson testified in the jurys presence that defendant told her he had a confrontation with her father earlier on the day in question. Elizabeth told her that defendant pointed a gun at their father and his fiance, but then put the gun down after he saw who it was. Elizabeth told Peterson that defendant got rid of the gun afterwards. Peterson testified that on a previous occasion, Peterson saw defendant at the apartment with a gun. He was on the phone with a .22-caliber pistol in his hand. While he was arguing with someone on the phone, he turned around and shot the gun two times into a daybed Peterson was standing next to.
B. Jury selection.
During jury selection, the trial court and both counsel examined the jury venire to obtain 12 panel jurors. During voir dire, Juror No. 2 and Juror No. 3 spoke about their religious practices.
Juror No. 2 stated that both she and her husband have had their own church for the last two and one-half years and that she does prison ministry. She also has relatives working as correctional officers. The court informed Juror No. 2 that sometimes highly religious people would back away from the decision-making process in holding someone accountable, the theory being that a higher authority will be the final court in this case and asked if she had the tendency to want to do that. Juror No. 2 responded, I believe in accountability. The court also asked if she dealt with inmates in her prison ministry. Juror No. 2 replied that she did work with them. Asked if that caused her to be more skeptical of the prosecutions charges, Juror No. 2 responded, Where we go to[,] we love the inmates and we love the officers. You know, theyre great people both to us.
Defense counsel asked Juror No. 2 if her prison ministry was a Christ-based type of ministry. Juror No. 2 responded, Yes. When defense counsel inquired if she were required to strictly scrutinize whether or not the prosecution had omitted [the] burden of proof, would [she] be able to stand tall . . . [] . . . [] . . . [e]ven if [she] were a single voice standing tall? She responded, Even if I was a single voice, yes.
As to Juror No. 3, the court asked, Do you have any moral or religious principals which would make it difficult or impossible for you to judge whether someone is guilty of a crime? Juror No. 3 replied that she was a Christian and sends Bible study lessons into prisons and believed in Christ-like principle[s]. She was an administrator for a prison ministry and got involved in it through three churches. She used to visit the Chino Womens prison and conducted Bible study there. Juror No. 3 also mentioned that her son was charged with the same offense as defendant and had served time in prison. She felt that the prosecution had been unfair to her son and he was treated unfairly in prison. She remarked that she often hears inmates complain that they are treated unfairly by the court system but would not be in judgment of them because [she] wasnt there during the pendency of their cases.
The prosecution first excused Juror No. 3 and then excused Juror No. 2. After the noon break, defense counsel made a Wheeler[2]motion objecting on the grounds that the prosecutor was excusing jurors that had prison ministries and that . . . had a strong spiritual affiliation The trial court denied hearing the motion at that time and advised it would address it on our time and not the jurors time. After the jury panel of 12 were sworn in, the trial court voir dired for the two alternate jurors. After they were selected, the two alternates were sworn in. At that point, the trial court held a hearing on defendants Wheeler motion.
Defense counsel argued that the prosecutor had systematically excluded Juror Nos. 2 and 3 because they were people who have articulated a spiritual type ministry or [who had] indicated their strong views on God as jurors. While trying to identify the group the prosecutor was excluding, defense counsel made the following comments to the trial court:
[DEFENSE COUNSEL:] In this case, the concern I have is that under the free exercise clause or the First Amendment, a juror should be entitled to assert a religious preference and not be systematically excluded because of that, you know, because of -- because of that articulation. Christians, Jews, Muslims, whomever, should be allowed to sit on the jury and state it proudly and have that not be a reason for exclusion. So when I noticed the second juror get excluded without voir dire I was concerned that there was a systematic exclusion of spiritual people -- I used the word spiritual because I didnt get too much into the concept of Christianity because the people who would express religious activities, who were perhaps engaging in free exercise type behavior -- by the prosecution and I think the person what does that is entitled to sit on a jury if they are otherwise so qualified.
And so its our position that the prosecutor has engaged in the systematic exclusion of people.
THE COURT: Of what group, sir?
[DEFENSE COUNSEL]: Of people who have articulated religious profession as their, you know, a religious-type thing as a -- I want to use the word Christians -- I guess Ill use the word Christian people.
THE COURT: Im not sure what religions either of those jurors were or are. Did I miss anything?
[DEFENSE COUNSEL]: One of them talked about Christianity and Christlike [sic] principles, that was the second one.
THE COURT: [Juror No. 2].
[DEFENSE COUNSEL]: The first one I didnt get that far because I didnt want to put that person on the spot about it, you know, but the second one, I felt more comfortable. The inspiration that I had was to talk to her about those issues. And we had that discussion and she was immediately bumped on I think the next peremptory challenge by the prosecution.
So the group that I am talking about I guess would be isnt necessarily a race, but its people who exhibit religious qualities. . . .
So its my position that excluding Christian-type jurors, people who articulate the fact that they have religion and spirituality as a part of their life is tantamount to the exclusivity of the type of people without justification. If there is [sic] other reasons, I would like to hear, but it appears like shes kicking out the Christians or the people that articulate ministry-type professions or hobbies. . . .
The trial court did not follow Wheeler procedure in ruling that the defense made a prima facie case. Instead, the trial court turned to the prosecutor and simply said, Okay. Response. The prosecutor argued twofold: (1) that the defense had not made a prima facie case because defense counsel could not articulate a class, and (2) she did not exclude Christians as she did not inquire into the jurors religious affiliation. Mr. Blankenship replied, I would say the prosecutor is kicking off the jurors based on the position they were taking that they were Christian people that like to minister spiritual things to people who have made mistakes so they would probably be forgiving in nature as opposed to being perhaps punitive in nature. Thats my position. I mean, I did the best I could given what I have.
Instead of expressly determining that defendant made a prima facie case, the trial court impliedly found a prima facie cause because it invited a response from the prosecution. The prosecutor pointed out that because defense counsel had difficulty articulating a class of people, he did not make a prima facie case. Defense counsel insisted he articulated a class: that of people who articulate their spiritual leanings and perform some ministry, thats religious people, I guess I could say Christians . . . . [] . . . [] I would say the prosecutor is kicking off the jurors based on the position they were taking that they were Christian people that like to minister spiritual things to people who have made mistakes so they would probably be forgiving in nature as opposed to being perhaps punitive in nature.
The trial court denied defendants Wheeler motion. It ruled that defense counsels definition of a class was too vague and broad. It found that the prosecution may have legitimate reasons to excuse those jurors, including the prison contacts and considering penalty and punishment which is against the courts instructions.
DISCUSSION
A. Persons involved in a religious or spiritual ministry do not constitute a cognizable group.
Citing Rubio v. Superior Court (1979) 24 Cal.3d 93 (Rubio), defendant argues that the two religious jurors participating in prison ministries are members of a cognizable class because they share a common perspective arising from their life experience in the group. He contends that spiritual persons who publicly profess their faith and minister to the incarcerated share a common social or psychological characteristic because (1) they can be identified with certainty because they publicly proclaim their faith, and (2) they have a common interest in comforting the troubled and going to unpleasant places like jails and prisons. He observes that [p]eople with strong religious beliefs are not born, they are developed and come to their faith over time[,] therefore, those with a faith strong enough to feel compelled to bring that religion to a prison setting share a distinct bond and outlook regarding the commonality of the human condition.
[I]n state criminal prosecutions the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution, and that such right is violated when a cognizable group within the community is systematically excluded from jury service. [Citation.] (Rubio, supra, 24 Cal.3d at p. 97.)
A cognizable group is defined as members [sharing] a common perspective arising from their life experience in the group and that no other members of the community are capable of adequately representing the perspective of the group assertedly excluded. (Rubio, supra, 24 Cal.3d at p. 98.) However, exclusion of groups that share attitudes that prevent them from performing their duties as jurors is not a distinctive group for a fair cross-section of the community claim. (Lockhart v. McCree (1986) 476 U.S. 162, 174.) A juror may be excluded when a jurors views would prevent or substantially impair the performance of the jurors duties in accordance with the courts instructions and the jurors oath. (People v. McDermott (2002) 28 Cal.4th 946, 981-982.) Clearly, defense counsel in this case had difficulty in articulating a coherent cognizable group. The best he could come up with was a group who were spiritual/religious/vocal/Christian/forgiving/prison ministry people.
Cases have held the following are cognizable groups: Blacks (People v. Young (2005) 34 Cal.4th 1149, 1173); Black women (People v. Cleveland (2004) 32 Cal.4th 704, 734); women (J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 146); men (People v. Williams (2000) 78 Cal.App.4th 1118, 1125); gays and lesbians (People v. Garcia (2000) 77 Cal.App.4th 1269, 1272, 1281); Black men (People v. Gray (2001) 87 Cal.App.4th 781, 783); and religious groups (People v. Schmenk (2005) 37 Cal.4th 240, 266). (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2006 supp.) Criminal Trial, 499, pp 77-78.)
However, defendant does not cite, nor has our extensive research revealed, any case that holds that spiritual/religious/prison ministry people are a cognizable group. Nor do we agree with defendants claim that spiritual/religious/prison ministry people share a common perspective arising from their life experience and that no other members of the community are capable of adequately representing the perspective of spiritual/religious/prison ministry workers. (Rubio, supra, 24 Cal.3d at p. 98.)
Prison ministry workers may be Christian, Jehovahs Witness, Buddhist, Swedenborgian, Confucian, Animist or atheist.[3] It is unreasonable to believe that these differing groups share a common perspective arising from ministering to inmates in prison. It is also unreasonable to find that no other members of the community have a common interest in comforting the troubled and going to unpleasant places like jails and prisons. While altruistic people may or may not be spiritual or religious, many good people with differing perspectives comfort the troubled and go into many unpleasant places, such as when rescue workers rushed into New Orleans after Hurricane Katrina, United Nations aid workers go into Botswana to help AIDS sufferers, or social workers enter into hospices to visit the dying. Again, no one would say these different nurturing and ministering people are a member of a single community with a common interest.
While it is true that striking a prospective juror on the basis of religion is cognizable under Wheeler (People v. Schmenk, supra, 37 Cal.4th at p. 266), excusing a juror because his or her religious beliefs interfere with her service as juror is permissible. (People v. Garcia (2000) 77 Cal.App.4th 1269, 1281, fn. 9; People v. Martin (1998) 64 Cal.App.4th 378, 383-385.) We now turn to an analysis of whether the record shows a reasonable basis for the prosecutors excusing Juror No. 2 and Juror No. 3.
B. There were reasonable bases for the prosecutors peremptory challenges.
Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution. [Citations.] (People v. Cornwell (2005) 37 Cal.4th 50, 66.) When a party makes a Wheeler motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 549 (Avila).) [A] single discriminatory exclusion may also violate a defendant's right to a representative jury. (Ibid.)
A defendant may make out a prima facie case of group bias in jury selection by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citation.] The [United States Supreme Court] recently reaffirmed this principle [in Johnson v. California (2005) 545 U.S. 162] stating that a defendant makes out a prima facie case of group bias when he produces evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] The defendant ultimately carries the burden of persuasion to prove the existence of purposeful discrimination. [Citation.] (Avila, supra, 38 Cal.4th at p. 548.)
It is difficult to discern from the record what standard the trial court used to determine whether a prima facie case was made. It appears that the trial court ruled that the defense did not make a prima facie case because the defenses statement of group bias was vague and broad.
In cases in which the trial court found no prima facie showing of discrimination in jury selection, and it is unclear what standard the trial court employed in making its determination, we have reviewed the record independently to discern whether a prima facie showing has been made under the proper inference of discriminatory purpose standard. [Citations.] (People v. Williams (2006) 40 Cal.4th 287, citing, Avila, supra, 38 Cal.4th at pp. 553-554.)As the trial court did not articulate what standard it used in ruling that the defense did not make a prima facie case when the prosecutor excused Juror Nos. 2 and 3, we . . . apply the high courts standard articulated in Johnson v. California, supra,545 U.S. 162 . . . and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on [an improper basis]. (Avila, supra, 38 Cal.4th at p. 554.)
There is nothing in this record to infer that the prosecutor excused Juror Nos. 2 and 3 for an impermissible reason. Where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we will affirm the ruling. (People v. Guerra (2006) 37 Cal.4th 1067, 1101.)
With respect to Juror No. 2, she stated that both she and her husband have a church and are involved in full-time ministry, including prison ministry in which she works with inmates. She said she loved both the correctional officers and the inmates. Perhaps the prosecution perceived that Juror No. 2 could be sympathetic to the defense because she worked with and loved the inmates. A party does not offend Batson [v. Kentucky (1986) 476 U.S. 79] or Wheeler when it excuses prospective jurors who have shown orally or in writing, or through their conduct in court, that they personally harbor biased views. [Citation.] (People v. Stanley(2006) 39 Cal.4th 913, 940.)
With respect to Juror No. 3, she informed the trial court that she was an administrator for a prison ministry and sends Bible study lessons into prisons. She remarked that she often hears inmates complain that they are treated unfairly by the court system. She also stated that her son was charged with the same offense as defendant and had served time in prison. She felt that the prosecution had been unfair to her son and he was treated unfairly in prison. When the record supports an inference that the prospective juror evinced a degree of hostility toward the prosecutor, the defendants Wheeler claim is properly denied. (People v. Ward (2005) 36 Cal.4th 186, 202.)
Juror No. 3s remarks do not support an inference that she was excused because of her religion, her spirituality, or her vocal expression of faith, but because of her personal experience with an allegedly unfair prosecution of her son and his unfair treatment in prison. Any prosecutor would have challenged her. (People v. Cornwell, supra, 37 Cal.4th at p. 70.)
1. Defendants request for judicial notice.
Defendant has requested that we take judicial notice that his trial counsel, Mark Blankenship, has resigned from the California State Bar with charges pending. Because defendant is requesting that we remand the matter back to the trial court to have the prosecutor enumerate her reasons for the peremptory challenges to Juror Nos. 2 and 3, defendant asserts that we should take judicial notice that Mr. Blankenship will be unable to appear at trial to participate in the third step of the Wheeler motion.
We grant defendants request to take judicial notice of Mr. Blankenships status with the California State Bar, pursuant to Evidence Code section 459. We acknowledge that defendants requested remedy for a remand would be difficult because Mr. Blankenship is ineligible to practice law and would not be available to participate in the hearing on step three of the Wheeler motion if this matter were to be remanded. However, Mr. Blankenships resignation from the California State Bar with charges pending does not pose a problem.
Defendants request that this court order a remand of this matter back to the trial court to hold a Wheeler hearing for the prosecutor to state her reasons for the peremptory challenges is denied. As we have discussed above, we find that people who participate in a religious or spiritual prison ministry do not constitute a cognizable group and that there were reasonable bases underlying the prosecutors peremptory challenges.
C. The trial court did not err in admitting defendants prior uncharged act of discharging a firearm.
Defendant contends that the trial court abused its discretion in admitting testimony of the prior incident when defendant angrily fired a pistol into a daybed after arguing with someone on the phone. He claims that the matter was more prejudicial than probative and should have been excluded on that ground. He states that the evidence was prejudicial because (1) the jury would infer that he already received a break by not being prosecuted in that incident, and (2) that he is an angry, violent man who probably engaged in domestic violence in this case. He also asserts that the trial court never engaged in the weighing process, ruling instead in an arbitrary and capricious manner. It failed to sanitize the evidence by allowing the admissible portion that defendant fired a gun but excluded the inadmissible portion that he shot in anger.
Evidence Code section 352 gives a trial court discretion to exclude 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. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) Evidence Code section 353, subdivision (a) requires that defense counsel state the specific ground that he is relying on in his motion to exclude evidence. Here, defense counsel objected to testimony regarding the daybed incident on the grounds that (1) it would create a mini-trial (i.e., would be an undue consumption of time) and (2) it was irrelevant (arguably that it would confuse the issues, mislead the jury, or was not probative). He never objected on the grounds of undue prejudice by arguing that the jury would infer he had received a break or that the jury would infer that his angry and violent traits meant that he engaged in domestic violence. Therefore, those arguments which are being raised for the first time on appeal are waived.
Neither did defense counsel request that the trial court sanitize the evidence by excluding evidence that defendant was angry, but allowing evidence that he fired twice into the daybed. Again, this issue has been waived on appeal as it was not raised below.
However, we do address defendants contention that the trial court ruled in an arbitrary and capricious manner by claiming that it never engaged in the prejudicial versus probative weighing process. This issue has been preserved on appeal by defense counsels undue time consumption and relevancy objections.
In this instance, the trial court ruled that Petersons testimony was relevant because it was inconsistent to the testimony Elizabeth gave. Elizabeth testified that although defendant knew she had guns, he never touched them and did not have a rifle during Zanes and Browns visit. We review the trial courts Evidence Code section 352 ruling for abuse of discretion. (People v. Rogers (2006) 39 Cal.4th 826, 863.)
Evidence Code section 1101 provides in part: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [] . . . [] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness. A court or jury may consider the existence or nonexistence of any fact testified to by a witness that has a tendency to prove or disprove the witnesss truthfulness in order to assess the witnesss credibility. (Evid. Code, 780, subd. (i).)
Evidence Code section 352 gives a trial court discretion to exclude 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. (People v. Wesson, supra, 138 Cal.App.4th at p. 969.) When 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.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Lewis (2001) 25 Cal.4th 610, 637.)
Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendants case based upon extraneous or irrelevant considerations. (People v. Rogers, supra, 39 Cal.4th at p. 863.) [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. (People v. Smith (2005) 35 Cal.4th 334, 357.) In applying section 352, prejudicial is not synonymous with damaging. (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Here, the trial court admitted Petersons testimony that defendant fired a weapon on a prior occasion to rebut Elizabeths testimony that defendant never touched her guns and did not touch them on the day in question. Evidence tending to contradict any part of a witnesss testimony is relevant for purposes of impeachment. [Citations.] (People v. Lang (1989) 49 Cal.3d 991, 1017.)
To convict on the section 245 and the section 12021 charges, the prosecution had to prove that defendant assaulted Zane and Brown with a firearm and possessed a firearm, respectively. Petersons evidence that defendant previously discharged a gun into a daybed at the apartment was relevant to Elizabeths credibility by rebutting her claim that defendant never touched her guns. It was probative of the issue of whether defendant committed an assault with a firearm or possessed a firearm. Petersons testimony did not unduly consume a lot of time. Her testimony took up approximately 44 pages of reporters transcript. On the other hand, the evidence was somewhat prejudicial in that it shows defendant fires off guns when he is angry.
The record reflects that the trial court exercised its discretion when it found that the daybed incident was relevant to impeach Elizabeths testimony. However, it need not expressly state that it has done the weighing. (People v. Mickey (1991) 54 Cal.3d 612, 656.) We conclude that the trial court did not abuse its discretion in admitting the prior firearm discharging incident. It was within the bounds of reason for it to find that the prior incident was more probative than it was prejudicial.
D. The abstract of judgment and the sentencing minute order should correctly reflect the pronounced judgment.
Both parties agree that the abstract of judgment does not reflect the trial courts pronouncement that counts 2 and 3 run concurrent to count 1. We agree with the parties. We also agree with the prosecution that the trial courts minute order and abstract of judgment should be corrected to reflect that defendant was sentenced to three years for count 2, four years for the personal use of a firearm enhancement in count 2, and two years on count 3.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting that counts 2 and 3 run concurrent to count 1; and that the trial courts minute order and abstract of judgment should correctly reflect that defendant was sentenced to three years for count 2, four years for the firearm enhancement in count 2, and two years on count 3. The trial court is further directed to send a copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ MILLER
J.
We concur:
/s/ McKINSTER
Acting P. J.
/s/ KING
J.
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[1] All further statutory references will be to the Penal Code unless otherwise indicated.
[2] People v. Wheeler (1978) 22 Cal.3d 258.
[3] We noted one prison ministry network that includes 71 different religions. (http://www.religion-portal.com/ReligionFinder/religions/PrisonMinistry.htm)
