P. v. Bryan

Filed 8/21/07 P. v. Bryan CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Affirmed with modifications.

Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Keyana Bryan, appeals from her convictions for two counts of stalking. (Pen. Code,^[1] 646.9, subd. (a).) Although defendant was convicted of felony stalking, the trial court subsequently reduced count 1 to a misdemeanor pursuant to section 17, subdivision (b)(5). Defendant argues the trial court improperly admitted evidence of a defense witnesss expunged aggravated assault conviction. The Attorney General argues court construction penalties and court security fees should have been imposed. We affirm with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Lecola Keaton married Bryant Keaton in June 2003. Ms. Keaton had known defendant, her husbands cousin, for more than five years prior to trial. At one point, defendant and Ms. Keaton were friends. They often socialized together. However, their friendship ended in June 2003, when defendant learned that Ms. Keaton was having an affair with Antoine Lee. Mr. Lee was the father of defendants two children. Ms. Keaton was pregnant with Mr. Keatons child in June 2003. Ms. Keaton was having an affair with Mr. Lee at that time.

Defendant began telephoning Ms. Keaton with threats such as: Bitch, Ima beat your ass. Fuck you. Your daughter is not Bryants. Defendant also referred to Ms. Keatons daughter as a bitch. Defendant repeatedly called Ms. Keaton at home and work. Defendant used her cellular and home phones to make the calls. Defendants telephone numbers were displayed on Ms. Keatons caller identification feature. Ms. Keaton repeatedly asked defendant to stop calling. During either August or September 2003, defendant telephoned Ms. Keaton. During that telephone call, defendant threatened to beat Ms. Keaton.

A baby shower was held for Ms. Keaton at her place of employment. When Ms. Keaton opened a gift in a baby shoe box, she discovered excrement inside a plastic bag. A message inside the box said: Heres some shit, heres some shit for a bitch who aint shit. Eat shit and die. Ms. Keaton learned that defendant had sent the box with the excrement. In a subsequent telephone conversation, Defendant told Ms. Keaton: You know I did it. Fuck you, bitch. Defendant also said, You wont be a woman and fight me, bitch.

Ms. Keatons baby was born on September 20, 2003. On September 26, 2003, defendant attempted to enter Ms. Keatons house. Defendant said, Im here to beat your ass. Ms. Keatons mother and sister and Mr. Keaton stopped defendant from coming inside. Ms. Keaton called the police. Defendant was restrained but not arrested. Records of defendants cellular telephone usage revealed numerous calls made to Ms. Keatons telephone at home and work. In addition, defendant made calls from pay telephones. Calls were also placed from the telephone of Paul Bryan. Defendants brother and father were both named Paul Bryan. Ms. Keaton estimated that she received over 300 telephone calls from defendant.

In addition to asking defendant not to call, Ms. Keaton called the police and obtained a restraining order. Ms. Keaton called the police on numerous occasions regarding defendants harassing telephone calls. On October 12, 2003, defendant called Ms. Keaton 29 times between 10:55 p.m. and 11:30 p.m. Thereafter, several calls were made between 11:34 p.m. on October 12 and 8:51 a.m. on October 13, 2003. These calls kept Ms. Keaton awake. Also, Ms. Keatons daughter was awakened. Ms. Keaton was frightened by defendants statements during those calls. Defendant said: Ima blow your house up. Wake your bitch ass baby up. Youre going to have to unplug the phone or change the number. Im going to keep calling. Youre my job. Bitch. Ms. Keaton requested a restraining order on October 24, 2003. Ms. Keaton was afraid. During some calls, defendant told Ms. Keaton: Come outside and get this ass kicking. I know youre at home alone. On October 28, 2003, Pasadena Police Officer Alfredo Magallon responded to a call regarding a restraining order violation at Ms. Keatons home. Ms. Keaton told Officer Magallon she had received approximately 35 telephone calls that morning. Ms. Keaton was upset and nervous. Officer Magallon testified, She said that [defendant] had been bothering her for several weeks. . . . Ms. Keaton showed Officer Magallon the restraining order dated October 24, 2003.

Ms. Keaton returned to work at the Hampton Inn in late October or early November. Defendant repeatedly called Ms. Keaton at work. Ms. Keaton contacted the Arcadia Police Department on November 29, 2003, regarding numerous calls made by defendant to the Hampton Inn on that date. Defendant continued to telephone when the police were present. One called was picked up by a police officer. Ms. Keaton described a telephone call defendant placed which was overheard by an Arcadia officer, [S]he was on her way to beat my ass. As a result of the repeated harassment by defendant and the resulting stress, Ms. Keaton suffered three miscarriages between June 2003 and the trial in July 2006.

At approximately 12:15 a.m. on December 11, 2004, defendant banged on Ms. Keatons window and door. Defendant placed a letter in the mail box and said, Bitch, come outside. The letter left in the mail box was written by Mr. Lee to defendant. At approximately 10 a.m. that day, defendant threw a brick at Ms. Keatons car. Ms. Keaton looked out the window at her car. There, Ms. Keaton saw defendant walking away from the car in the driveway. Defendant got into a waiting car, which drove away. Thereafter, Ms. Keaton discovered the tail light on her car had been broken and the bumper was damaged. Ms. Keaton reported the December 11, 2004 incident to the police.

In January 2005, Ms. Keaton requested another restraining order. Between February 2004 and January 2005, defendant telephoned Ms. Keaton sporadically from different telephones with blocked identification. On April 6, 2005, Ms. Keaton returned home from a shopping trip at about 11 p.m. Mr. Keaton left the house on a work-related errand. Ms. Keaton went out to her car to retrieve some items after midnight. Ms. Keaton was then hit from behind and knocked to the ground. Defendant was Ms. Keatons assailant. Ms. Keaton got up and ran to the house. Defendant gave chase. Ms. Keaton was unable to close the door. Defendant was right behind her. Ms. Keaton ran to her room. The Keatons baby was in the room. Ms. Keaton ended up on the floor. Defendant was on top of Ms. Keaton. Defendant repeatedly hit and choked Ms. Keaton. Ms. Keaton feared she might die. Ms. Keatons child woke up crying. Defendants weight held Ms. Keaton down on the floor. Ms. Keaton was unable to fight back. Defendant told Ms. Keaton something like, Bitch, I told you you were going to be my job. Ms. Keaton feared for her daughters safety. The attack eventually stopped. Defendant left the house. Ms. Keaton locked the front door. Ms. Keating was injured and upset. Ms. Keaton called the police after defendant left.

Pasadena Police Officer Darin Craddolph responded to Ms. Keatons home at 3:45 a.m. on April 6, 2005. Ms. Keaton had redness and swelling above her face. Ms. Keaton was quite upset, crying, sobbing and trying to get her breath. Officer Craddolph explained how Ms. Keaton described her retreat into her home, Ms. Bryant followed her into her home beating on her from behind, punching her. Officer Craddolph continued: She said she basically was struggling, trying to get there. She was beaten and as she was reaching for her daughter, the defendant was able to take her down to the ground and continue beating her. [] . . . [S]he was actually sitting on top of her choking her and punching her with closed fists. Ms. Keaton told Officer Craddolph that defendant said, I told you, you were my job. Photographs taken that night depicted injuries to Ms. Keatons arm, face, chest, and neck.

Ms. Keaton testified on November 26, 2005. The next day, Mr. Keaton received a telephone call on his cellular telephone from defendant. Ms. Keaton could hear defendants voice. Ms. Keaton heard defendant say, Im going to cut you and you better lay low. Defendant called Mr. Keatons phone again later that day. Defendant told Mr. Keaton to put Ms. Keaton on the phone. When Ms. Keaton got on the phone, defendant said: Bitch, get off the phone. Give the phone to that nigga. . . . Be ready for me to come cut you and your bitch ass nigger. On June 6, 2005, defendant was personally served with a restraining order.

Ms. Keaton was still close friends with Mr. Lee at the time of trial, but was no longer having an affair with him. Ms. Keaton was still married to Mr. Keaton. Ms. Keaton found it difficult to testify at trial because she was a forgiving person. Also, Ms. Keaton, who did not want to testify, felt uncomfortable because defendant was a mother. Ms. Keaton came to court in response to a subpoena. Ms. Keaton had not called defendant with any regularity during the time period when the relationship between the two women became hostile. During the three years while the stalking was occurring, Ms. Keaton described her feelings: Scared for me and my daughter. Always looking out my window.

Detective Simone Alexander was assigned to this case just after Ms. Keaton was beaten in April 2005. Detective Alexander arranged for photographs to be taken of Ms. Keatons injuries at the police station on April 8, 2005. Ms. Keaton told Detective Alexander that the incidents had been taking place for three years. Ms. Keaton told Detective Alexander about the gift box that contained excrement at her baby shower in September 2003. Ms. Keaton also described an incident three days after the baby was born, She said that . . . the defendant came to her home, tried to fight her, she had called the police and the police arrived. Ms. Keaton told Detective Alexander that the harassing phone calls from defendant began in June 2003 and continued until April 2005. Ms. Keaton was disappointed that law enforcement had not intervened in all that time. Ms. Keaton knew that eventually something would happen. Ms. Keaton expressed concern for her own safety. Also, Detective Alexander testified: She was concerned about her daughters safety, as well. [] . . . She indicated that the threats were not just against her. It was also against her daughter. In response to death threats, Ms. Keaton had changed her phone number two or three times. Defendant also threatened to kill Ms. Keatons baby. Changing telephone numbers did not stop the telephone calls. Ms. Keaton continued to be stressed and afraid at the time of trial.

III. DISCUSSION

A. Admissibility of Impeachment Evidence

Defendants sole contention on appeal is that the trial court improperly admitted evidence of an expunged felony assault conviction to impeach a defense witness, Amanda Thomas. Ms. Thomas knew Ms. Keaton. They met when Ms. Keaton was 14 years old. In 1996, Ms. Keaton complained that Ms. Thomas had made terrorist threats using a telephone. Ms. Thomas had a child with Mr. Keaton. Ms. Keaton objected to Ms. Thomass contacts with Mr. Keaton. Ms. Thomas testified that a box containing feces was placed on her doorstep with a signed threatening note. Ms. Keaton left the box and the note. Defendant is the cousin of Ms. Thomass son. On cross-examination, the prosecutor inquired, [I]n 1996 werent you convicted of assault by force likely to produce great bodily injury as a felony in the Pasadena Superior Court? Ms. Thomas responded: Yes. Self-defense. Yes. The court advised Ms. Thomas that she could not be convicted as self-defense. The court inquired, [D]id you suffer that conviction? Ms. Thomas responded, No.

Thereafter, the prosecutor produced records reflecting Ms. Thomass conviction. In a side-bar discussion, defense counsel objected to the introduction of the document as hearsay. The prosecutor agreed to get a certified copy of the document. Testimony was suspended to allow her to do so. Later that day, the prosecutor showed Ms. Thomas the certified record. Ms. Thomas was asked if she had previously been convicted of assault by means of forcibility to produce great bodily harm. Ms. Thomas responded: Yes. Later it got dropped [] to a misdemeanor.

Thereafter, the prosecutor at a side-bar conference, objected to defense counsels questioning: The fact of what happened to the eventual disposition of the case is not material to her impeachment with a felony conviction. Has nothing to do with it. I mean, it could have been expunged and it doesnt matter. The fact of the conviction is whats allowed to be used to impeach her. Defense counsel argued, Well, this document is introduced and this document clearly states that on September 21st of 99, it was reduced to a misdemeanor, pursuant to 17b. The trial court responded: Well, the point that the People are making, and I tend to agree with is that, the only reason that the People are able to bring that to the attention of the jury through this witness is the fact that she suffered a felony conviction. Thats the only fact thats established and what happened thereafter, number one, I find confusing. If I didnt know how that works, it would be totally confusing to me. Because just this by way of example, when she says the charge was dropped, thats totally inaccurate. Its misleading. In response to defense counsels offer to clear it up, the trial court stated: No, it wont because you know what, that has nothing to do with anything. And thats the Peoples point. The fact of the matter is that for purposes of her testifying and purposes of the ability to impeach her with this, the only thing thats relevant, is the fact that she suffered the felony conviction. The later actions dont relieve her of the burden that she has as a witness in a case like this, because she suffered a felony. The fact that it was later expunged, later reduced, whatever, does not take away the fact and the strength of the conviction, the previous felony conviction and so all that does is allow you to confuse the jury and I agree with the People on that. I dont think thats appropriate.

Defense counsel argued: What shes done is shes taken this out of context. Shes offered this document and this document clearly shows the ultimate resolution of that and its incomplete. Shes trying to The trial court interrupted, The ultimate resolution is irrelevant. Defense counsel continued: Its not irrelevant, your honor. I think it is very relevant, because it shows that shes telling the truth about what happened. She testified that it was reduced to her, ultimately dismissed and thats exactly The court again interjected: The only relevance of introducing the felony against a witness like this, is the burden that goes along with having suffered a felony conviction, which means it can be argued if you were ever a witness in a case, that your testimony can be distrusted if the jury decides to do that. What happens after that, does not give her back the ability to say, I didnt have a felony. In a court of law like this, it doesnt give her back the ability to rehabilitate her veracity as a witness in the case. It doesnt. Thats gone once she suffered the felony. [] Are you arguing that once its reduced in this matter, that she is then immune from being able to be [sic] challenged a felony conviction?

Defense counsel responded: No. No. Of course not. The trial court added, Then the rest of it is irrelevant. Defense counsel reiterated, Well, I should be allowed to bring in the fact that she had it reduced. The trial court answered: Of what relevance is that, other than to confuse the jury? The jury is going to say Oh, its been reduced, or again, to use her example, its been dropped, which is the furthest thing from the truth. Defense counsel stated: What it does it puts a complete picture. I mean, many cases are not reduced. Shes licensed now. The court responded, Of what relevance is that? [] . . . [] In context of what this is being used by the People? Defense counsel stated: Because disability caused by a felony, now shes now a licensed day care provider by the State of California. Thereafter, the trial court ruled the testimony that the felony was reduced irrelevant. The trial court granted the prosecutors motion to strike Ms. Thomass testimony regarding the reduction of charges. The trial court instructed the jury: The jury is instructed that any testimony by this witness referring to charges being dropped, or the matter being reduced is not before you properly. Should not be considered for any purpose.

In her new trial motion, defendant renewed her objection to the prior felony conviction evidence. The prosecutor acknowledged that pursuant to Evidence Code section 788, subdivision (c), the impeachment evidence should not have been admitted. However, the prosecutor further argued that defendant failed to object on those grounds at trial and even if the evidence was inadmissible, its introduction was harmless in light of the other overwhelming evidence in this case. The trial court concurred with that conclusion: From what I understand, the People just stated, I think the courts reading of that provision would concur. [] But I do also believe that on that particular issue, that there was substantial evidence in the record that even if we assume that that was error in proceeding with that, in that manner, that the substantial evidence in the case was sufficient for the jury to reach the verdict that they did in this case. The trial court then denied the new trial motion.

Evidence Code section 788, provides in pertinent part: For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: [] (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted. [] . . . [] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4 . . . . In People v. Field (1995) 31 Cal.App.4th 1778, 1787, our colleagues in the Court of Appeal for the Fourth Appellate District held: The California Legislature has seen fit to render convictions expunged pursuant to section 1203.4 as incompetent impeachment evidence for ordinary witnesses in civil or criminal trials. [Citations.] No doubt, under Evidence Code section 788, subdivision (c), the challenged evidence was inadmissible. The parties do not address the issue of the effect of California Constitution, article I, section 28, subdivision (d) which requires all relevant evidence including even misdemeanor conduct be considered in criminal cases subject to the discretionary exclusion provisions of Evidence Code section 352. (In re Freeman (2006) 38 Cal.4th 630, 640 [article I, section 28, subdivision (d) of the California Constitution supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of section 28(d). . . .]; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 21 [nonfelony conduct involving moral turpitude is admissible to impeach a witness in a criminal case].) However, we need not address this issue because under any standard of reversible error, no new trial is warranted.

Although defendants argument merely contends that the impeachment evidence was improperly admitted at trial, she makes further reference to the trial courts ultimate denial of the new trial motion based upon the same issue. We therefore address the trial courts denial of the new trial motion. The California Supreme Court has held:  The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.  (People v. Staten (2000) 24 Cal.4th 434, 466, quoting People v. Cox (1991) 53 Cal.3d 618, 694; People v. Musselwhite (1998) 17 Cal.4th 1216, 1251)

The trial court ruled that notwithstanding any potential error, there was substantial evidence of defendants guilt in the two stalking counts and that she would not have had a more favorable verdict absent the error. We agree. Telephone records revealed that defendant repeatedly called Ms. Keaton over an extended period of time, on occasion over 30 times within one-half hour. Defendant made over 350 cellular telephone calls to Ms. Keaton between June 2003 and February 2004. Defendants home phone records revealed additional calls to Ms. Keaton. Defendant attempted to enter Ms. Keatons home shortly after the birth of her child. The police responded to the scene. Several restraining orders against defendant were issued, including during the pendency of this trial. Defendant readily admitted repeatedly making telephone calls to Ms. Keaton. Defendant admitted threatening Ms. Keaton. In light of overwhelming evidence of defendants guilt in the two stalking charges, it is not reasonably probable that the impeachment evidence against Ms. Thomas was significantly prejudicial to permit a new trial to be granted. (People v. Marks (2003) 31 Cal.4th 197, 229; People v. Watson (1956) 46 Cal.2d 818, 836 .) As a result, the trial court could reasonably deny the new trial motion.

B. State Court Construction Penalties and Court Security Fees

The Attorney General argues additional state court construction penalties and additional court security fees should have been imposed. At sentencing, the trial court imposed a $200 fine pursuant to section 1202.4, subdivision (b)(1) and a $200 parole revocation fine pursuant to section 1202.45. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. ( 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, there are additional penalties or surcharges applicable to the sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines. Government Code section 70372, subdivision (a), the state court construction penalty, states in part, [T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . The state court construction penalty applies to every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . which includes restitution fines. Thus, the judgment must be modified to impose a $100 state court construction penalty on the section 1202.4, subdivision (b)(1) restitution fine. Further the judgment must be modified to impose a $100 state court construction penalty on the section 1202.45 restitution fine. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines will be stayed.)

Finally, defendant was subject to the imposition of a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) for each of the two counts for which she was convicted. The trial court imposed only one section 1465.8, subdivision (a)(1) fee. Two section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is modified to impose the state court fees and penalties as noted. The judgment is affirmed in all other respects. The clerk of superior court is to prepare an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.