P. v. Salgado

Filed 1/30/07 P. v. Salgado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Paul E. OConnor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a jury trial, Paul Gonzalez Salgado (appellant) was convicted of attempted voluntary manslaughter (Pen. Code,  664, 192, subd. (a)),^[1]assault with a deadly weapon ( 245, subd. (a)(1)), and misdemeanor domestic violence ( 243, subd. (e)(1)) all against his estranged wife, Mrs. Salgado; making a criminal threat ( 422) against his son, J.; and violating a court order ( 273.6, subd. (a)). Eight prior strike convictions and prior prison term allegations were found true. The trial court sentenced appellant to a total prison term of 32 years to life: 25 years to life on the attempted manslaughter conviction, plus a five-year consecutive sentence for a prior serious felony enhancement ( 667, subd. (a)) and a two-year consecutive sentence for two prior prison term enhancements ( 667.5, subd. (b)). Appellant also received a 32 years to life sentence on the assault conviction, stayed pursuant to section 654; a 32 years to life sentence on the criminal threat conviction, ordered to run concurrently; one year local time on the misdemeanor domestic violence conviction, stayed pursuant to section 654; and one year local time on the conviction for violating a court order, to be served concurrently.

Appellant contends that there is insufficient evidence to uphold the criminal threat conviction; that he received ineffective assistance of counsel when trial counsel failed to move for mistrial due to witness misconduct; and that the trial court improperly sanitized Mrs. Salgados prior convictions and improperly excluded evidence of her drug use. He contends these errors resulted in cumulative error. He finally contends he is entitled to additional presentence credit. We agree only with appellants final contention. We also agree with respondents request that we modify the abstract of judgment to reflect proper imposition of an enhancement on two counts. In all other respects, we affirm.

FACTS

Mrs. Salgado, who acknowledged prior felony convictions in 1982 and 1984 involving moral turpitude, described two instances in which appellant had injured her in the past. In January of 2003, when appellant was just released from prison, he sock[ed] her on her head, choked her, and grabbed her by the arm.^[2] In response, Mrs. Salgado obtained a restraining order against appellant. In another instance in August of 2004, appellant, who was upset that Mrs. Salgado left him two years prior, shoved her, causing her earring to catch on the wall and rip out. Appellant also socked Mrs. Salgado in the jaw, kicked her in the tailbone, and threatened her with a knife, slicing at her and cutting her blouse.

Appellants and Mrs. Salgados 15-year-old daughter, C., also described the January 2003 incident in which she saw appellant choke Mrs. Salgado. In response, she called police. C. also testified that, during the August 2004 encounter between appellant and her mother, she climbed out of the window of the house and left because she was scared appellant might hurt somebody. C. acknowledged that her mother was in a methadone treatment program in January of 2003.

Appellants and Mrs. Salgados 17-year-old son, J., recalled the August 2004 incident and that he and his sister crawled out of the window because they were afraid of appellant.

As to the current charges, J. testified that he encountered appellant on September 25, 2004, in the living room of Mrs. Salgados home. Appellant told J. that he would make a problem for J. if he said anything about him, which scared J. because appellant had been violent in the past. At trial, J. did not recall the exact words appellant used, but did testify that his memory was better at the time of the preliminary hearing.

Mrs. Salgado heard J. talking to someone and came out of her room to find appellant in her living room. J. left to check the mail. Appellant shoved Mrs. Salgado. She fell against the television stand and suffered severe back, neck, and head pain. The injury resulted in red marks, welts and bruises. Appellant then pulled Mrs. Salgado up by her neck and hair and pushed her into the bedroom. Appellant was calm for a brief period of time, but he then went off and threatened to kill Mrs. Salgado and himself.

Appellant had a knife and started coming around the bed toward Mrs. Salgado. Mrs. Salgado, who had a small knife on her nightstand, reached for it. Appellant stated, You got a knife too, bitch? Is it sharp like mine, bitch, and began stabbing and slicing Mrs. Salgados bed. Mrs. Salgado feared for her life and believed she was a goner. Appellant moved toward Mrs. Salgado with the knife raised at the level of his head and said, Im going to kill you now.

In the meantime, J. came back into the house and, concerned for his mothers safety, armed himself with a knife. J. went into the bedroom where Mrs. Salgado and appellant were arguing. When appellant raised the knife above his head and swung it, J. stabbed him in the back. Appellant froze, dropped the knife, and fell down onto the bed. He was only about a foot or foot and a half from Mrs. Salgado at the time. Mrs. Salgado and J. ran across the street and called 911. Mrs. Salgado asked J. Why did you do it? to which J. replied, I had to end it, Mom. He was going to kill you.

Mrs. Salgado testified that she had seen appellant at a store the week before the incident but denied that she had expressed an interest in working out their relationship. She denied asking appellant to bring her anything at the house.

Mrs. Salgado acknowledged being in a methadone program for 10 years. She denied taking methamphetamine within 48 hours of the incident. She also denied taking methamphetamine within 48 hours of the August 2004 or January 2003 incidents.

Defense

Officer Jeffrey Nacua, who responded to the incident, testified that Mrs. Salgado told him she first saw appellant when she opened her front door. Officer Nacua did not recall Mrs. Salgado telling him she had hit her head on the television stand, he did not think Mrs. Salgado mentioned having a knife, and he did not think Mrs. Salgado mentioned the word kill when she described appellants threat. Officer Nacuas report contained no reference to Mrs. Salgados statement that appellant threatened to kill her, which is something he would normally include in his report. Officer Nacua did not recall J. saying that appellant thrust the knife at Mrs. Salgado, but he did acknowledge that J. told him appellant was facing his mother while holding a knife. Officer Nacua also acknowledged that Mrs. Salgado, whom he described as very emotional and, at times, hysterical, told him that appellant pointed a knife at her in close proximity and that she feared for her life. Officer Nacua testified that J. told him appellant said [s]omething similar to Dont look at me that way or Ill hurt you.

Appellant testified in his own behalf. He acknowledged three prior felony convictions involving dishonesty in 1988. According to appellant, a week before the incident, he saw Mrs. Salgado at the market and she told him to come over to the house and they would talk. When appellant went to Mrs. Salgados house, on September 25, Mrs. Salgado asked for methamphetamine, which he got for her. When he returned to the house, he had a conversation with J. in which J. asked him to leave. Appellant told J. that was not J.s decision and that he was there to see Mrs. Salgado. Appellant told J. not to look and talk to him like that, because he was still his father. He told J. he was not there to make problems and asked that J. not make any problems for me either .

When appellant entered Mrs. Salgados bedroom, he gave her the methamphetamine. She then told him there had been another man in her life, but that she had thrown him out. But appellant saw shaving cream and a razor that he thought belonged to the other person. After confronting Mrs. Salgado about the other man, appellant decided to leave. By that time, Mrs. Salgado had started smoking the methamphetamine. Appellant picked up the remainder of the drug, but Mrs. Salgado pulled a knife and told him to give it back. Appellant pulled out his own knife and sliced the bed to show Mrs. Salgado that it was sharp. When he was stabbed in the back, appellant dropped the knife, and when he turned around, J. stabbed him a second time.

Appellant denied threatening Mrs. Salgado or making any motion with the knife toward her. He also denied threatening J., but claimed he merely scolded him in a fatherly way.

Appellant acknowledged that he was aware of a restraining order in effect on September 25 preventing him from going to Mrs. Salgados house. Appellant also acknowledged that, in his statement to Officer Nacua, he did not mention getting drugs for Mrs. Salgado or that she had smoked methamphetamine before the incident, nor did he mention having seen her at the market the week before. He further acknowledged that he told Officer Nacua that he did not open his knife during the encounter.

Rebuttal

Officer Nacua, who had training and experience related to recognizing methamphetamine use, did not notice that Mrs. Salgado displayed any signs of methamphetamine use when he arrived at the house. He was not able to rule out recent methamphetamine use because different people have different tolerance levels.

DISCUSSION

1. Sufficient evidence of a criminal threat

Appellant contends there is insufficient evidence to uphold his conviction for making a criminal threat against J. Specifically, appellant claims his statements were not unequivocal, but instead were so ambiguous that they failed to support a finding that he articulated a threat to commit a specific crime resulting in death or great bodily injury. He also contends that, since there was no evidence appellant had ever abused or harmed J. in the past, the statement could not have caused J. to have sustained fear for his own safety. We disagree with appellants contentions.

When sufficiency of the evidence is challenged, this court reviews the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Before a judgment of conviction can be set aside for insufficiency of evidence, it must clearly appear that upon no hypothesis is there sufficient evidence to support the verdict of the trier of fact. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

To sustain a conviction for making a criminal threat pursuant to section 422, the prosecution must establish five elements:

(1) [T]hat the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threatwhich may be made verbally [,] was on its face and under the circumstances in which it [was] made, so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances. (See generally People v. Bolin (1998) 18 Cal.4th 297, 337-340 & fn. 13 .) (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Threats are judged in their context. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) Section 422 is not violated by mere angry utterances or ranting soliloquies, however violent. One may, in private, curse ones enemies, pummel pillows, and shout revenge for real or imagined wrongssafe from section 422 sanction. (People v. Teal (1998) 61 Cal.App.4th 277, 281.) Instead, the statute is violated only if a defendant specifically intended that his words be considered threats. (Ibid.)

[S]ection 422 requires that the communication must be sufficient on its face and under the circumstances in which it is made to constitute a criminal threat. This means that the communication and the surrounding circumstances are to be considered together. Thus, it is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422. [Citations.] (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)

To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. That statute includes the qualifier so unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. [Citation.] (In re Ryan D., supra, 100 Cal.App.4th at p. 861.)

Circumstances surrounding a communication include the prior relationship of the parties and the manner in which the communication was made. (Id. at p. 860.)

Section 422 also requires the threat be such as to cause a reasonable person to be in sustained fear for his or her personal safety or for that of his or her family. The phrase to cause[] that person reasonably to be in sustained fear for his or her own safety has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1139-1140.) A fear is sustained when it extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

We find helpful the facts and analysis in People v. Mendoza (1997) 59 Cal.App.4th 1333, superseded by statute on other grounds as noted in People v. Franz (2001) 88 Cal.App.4th 1426, 1444. In Mendoza, the victim testified at a preliminary hearing against the defendants brother. Thereafter, the defendant went to the victims home and told her that she had fucked up his brothers testimony and he was going to talk to some guys from Happy Town, referring to a criminal street gang to which the defendant and his brother belonged. (Id. at pp. 1337, 1341.) When making the statements, the defendant did not appear to be angry or upset, and the victim did not initially take the words as a threat. (Id. at pp. 1337-1338.) But when she heard the honking of a car horn 20 to 30 minutes later, and saw the defendants friend sitting in a car across the street, the victim became afraid for her life. (Id. at p. 1338.) The appellate court upheld the defendants conviction for making a criminal threat. It explained that [a]lthough [Mendozas] words were ambiguous, did not mention a particular criminal act or give other particulars, a rational juror could have foundbased on all the surrounding circumstances[Mendozas] words were sufficiently unequivocal, unconditional, immediate and specific to convey to the victim a gravity of purpose and immediate prospect of death or serious bodily injury. (Id. at p. 1342.) The court also found the threat placed the victim in a state of sustained fear. (Ibid.)

In Ricky T., on which appellant relies, the 16-year-old defendant left his classroom to use the restroom. When he returned, he found the classroom door locked, and he pounded on it. A teacher opened the door outwardly, hitting the defendant in the head. The defendant became angry, cursed the teacher and said, Im going to get you or Im going to kick your ass. There was no evidence that the defendant had previously quarreled with or showed physical violence toward the teacher. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1135, 1136, 1138.)

The court concluded the record was insufficient to support the finding that the defendant had violated section 422. Judged in context, the defendants threat lacked credibility as an indication of a serious, deliberate statement of purpose. The remark, Im going to get you was ambiguous and no more than a vague threat of retaliation without prospect of execution. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1137-1138.) The court also found that the surrounding circumstances showed no immediacy to the threat. The defendant was simply sent to the school office, the police were not called until the next day, and the police did not interview appellant a second time until a week later. Finally, there was no evidence that the defendant and the teacher had a prior history of disagreement or other evidence that a physical confrontation was actually imminent. (Ibid.)

Here J. testified that appellant, his father, told me to make sure that if I said anything about him, that he would make a problem with me. Although J. testified that he did not remember the exact words, he did think his memory had been better at the time of the preliminary hearing. Officer Nacua testified that J. had told him appellant had said something to the effect of Dont look at me that way or Ill hurt you. Unlike Ricky T., appellants words to J. were not triggered by an accident or sudden event. Instead, they were made to dissuade J. from either getting in the way of appellants relationship with Mrs. Salgado or, perhaps, from reporting appellant for violating the restraining order out against him. Although appellants words were ambiguous out of context, as they were in Mendoza, the jury could reasonably have found that appellants words constituted a criminal threat in light of the surrounding circumstances.

J. also testified that appellants words caused him fear and scared him. When asked if he remained afraid after appellant spoke to him or whether the fear subsided, J. stated he remained afraid. J. testified that, while appellant had not physically hurt him previously, he was afraid because appellant had been violent in the past. J. described climbing out of a window during another encounter between appellant and his mother, because he and his sister were both scared of appellant.

There was sufficient evidence from which the jury could have determined J. was in sustained fear for his own safety. Also finding the threat to be sufficiently unequivocal and immediate, we reject appellants claim to the contrary and affirm the conviction.

2. Effective assistance of counsel

Appellant contends Mrs. Salgado and J. committed several instances of witness misconduct and that, as a result, defense counsel should have moved for a mistrial. Appellant argues that defense counsels failure to do so resulted in ineffective assistance of counsel, and his attempted manslaughter conviction must be reversed. We disagree.

The trial court permitted testimony on two specific instances of prior domestic violence by appellant upon Mrs. Salgado. Other instances of appellants past bad conduct and references to appellant having been on parole or convicted for the January 2003 incident or having been in prison were excluded. The trial court ordered the witnesses be admonished by counsel regarding the courts in limine rulings. Mrs. Salgado and J. were brought into the courtroom, and the prosecutor asked for a minute to inform them of the rulings .

At trial, Mrs. Salgado, C., and J. all testified concerning the two allowed past instances of bad conduct. As to the first incident, C. testified that appellant had been at the house on January 26, 2003. Mrs. Salgado testified she had not been home the night before, nor had she received her methadone treatment the following day. Mrs. Salgado was surprised to see appellant, who yelled at her while she tried to explain where she had been. Appellant socked Mrs. Salgado in the head and choked her. C. saw appellant choking Mrs. Salgado. The incident left Mrs. Salgado with marks on her neck, knots on her head, a cut on her forehead, and bruises on her arms. Mrs. Salgados sister testified that she saw the marks on Mrs. Salgados neck following the incident. C. left the house during the incident and called the police from a friends.

As to the second incident on August 30, 2004, appellant was at Mrs. Salgados house during the evening. Mrs. Salgado testified she had not received her methadone treatment that day. Appellant and Mrs. Salgado argued about why she had left him two years earlier. When Mrs. Salgado tried to leave, appellant caught her and shoved her against the wall, causing injury to her ear. Appellant kicked Mrs. Salgado on the tailbone, reinjuring a previous injury. He also pulled a knife, stated it was sharp, and used it to cut her blouse. Appellant socked Mrs. Salgado in the jaw, which cracked her tooth. He then wrote a suicide note and left the apartment. A friend of Mrs. Salgados was present and witnessed the incident. While appellant and Mrs. Salgado were arguing, C. and J. exited the residence through a bedroom window. After staying in a park for three hours, the children went to a friends and called their aunt. She, in turn, called the police.

The instances of witness misconduct of which appellant complains are as follows:

(1) During direct examination, the prosecutor asked Mrs. Salgado when she first saw appellant on August 26, 2003. The court asked the prosecutor whether she meant January 26, 2003, to which the prosecutor agreed. The prosecutor then asked Mrs. Salgado, January? She replied, When he walked though the door, he just got released from prison. I had no idea. The prosecutor stated, Im sorry, and the court struck, sua sponte, everything after When he walked through the door.

(2) On cross-examination, Mrs. Salgado was asked about her preliminary hearing testimony concerning the September 25, 2004, incident, during which she had denied falling down when appellant pushed her. Asked if she had been telling the truth at the time, she stated, I guess not. []  []  I dont remember. I was sick. After you had been through two years of abuse and terrorized for your life Defense counsel asked that the witness be instructed to just answer the questions, which the court did.

(3) J. testified that his fathers statement to him frightened him because of appellants past violent conduct. The trial court admonished the jury that this particular testimony related only to count 5, and could not be used for any other purpose or to prove any other charge.^[3] The prosecutor then asked J. why he believed appellant was going to do something to Mrs. Salgado. J. stated, [b]ecause hes done things to her in the past, to which the trial court sustained defense counsels objection.

Appellant argues there was no possible reason for trial counsels failure to object to these statements by Mrs. Salgado and J. on grounds of witness misconduct and to request a mistrial. We disagree.

To establish constitutionally inadequate representation, a defendant must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.)

When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention must be rejected. [Citations.] (People v. Samayoa (1997) 15 Cal.4th 795, 845-846.)

Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsels perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) [A] court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance . (Strickland v. Washington, supra, at p. 689.) The burden is to establish the claim not as a matter of speculation, but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, [a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 540.) Counsel is not required to maker futile or unmeritorious arguments on behalf of a defendant. (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)

A finding of incurable prejudice may be based on a witnesss volunteered statements. (People v. Williams (1997) 16 Cal.4th 153, 211.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.)

A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that the improper subject matter is of such a character that its effect cannot be removed by the courts admonitions. [Citations.] (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) The exceptional case is where the incompetent evidence goes to the main issue and where the proof of the defendants guilt is not clear and convincing. (People v. Hardy (1948) 33 Cal.2d 52, 61.)

We find appellants reliance on People v. Allen (1978) 77 Cal.App.3d 924 unavailing. In Allen, a minor and another individual participated in a robbery. The victim briefly observed the two and described the individual as older than the minor, with dark clothing, no cap, no beard and a curly Afro. (Id. at p. 928.) The minor and his mother supplied information which led to the arrest of the defendant at his home. Two jail inmates told an officer that the defendant admitted participation in the robbery. The minors mother testified for the prosecution that the defendants sister told her that she would lie in court to help the defendant. This was denied by the defendants sister. On rebuttal, the minors mother stated that the defendants sister told her that the defendant was on parole and couldnt stand another beef. The defendants motion for mistrial was denied. (Id. at pp. 928-929, 934.) The defendant denied his participation in the robbery and testified that he was with his sister all evening. He testified that he and the minor did not get along well. The defendants sisters corroborated his testimony. (Id. at pp. 929-930.)

On appeal, the court found error because the evidence of the defendants parole status was the result of a prior juvenile adjudication which cannot be deemed a conviction of a crime for any purpose. (People v. Allen, supra, 77 Cal.App.3d at p. 934.) The court also found the trial courts effort to cure the impropriety with an admonishment to the jury to disregard it completely, as if it were never said was insufficient because the case was extremely close and one in which the jury had to make its fact determination based upon the credibility of the defendant and his witnesses and on the credibility of the prosecution witnesses. (Id. at pp. 934-935.)

Here, when Mrs. Salgado referred to appellants release from prison, the court immediately struck the prison reference. After Mrs. Salgado referred to two years of abuse and having been terrorized, the court admonished Mrs. Salgado to [j]ust answer the questions that are pending. When J. testified that appellant had been violent toward Mrs. Salgado in the past, the trial court admonished the jury that J.s testimony was for the limited purpose of proving the threat charge. And when J. repeated the same statement moments later, the trial court sustained defense counsels objection, stating the evidence was irrelevant. In this case, we presume the prompt admonition was sufficient to cure any potential prejudice from J.s volunteered statements.

It is less clear whether the courts response to the two statements by Mrs. Salgado was sufficient. But we note that the jury was well aware of appellants criminal background and his violent acts against Mrs. Salgado. The two previous incidents of abuse which were testified to at length occurred within the two years previous to the current incident. The statement by Mrs. Salgado that she had been abused and terrorized within that time frame was nothing new to the jury. And although the jury had not been apprised that appellant had recently been released from prison until Mrs. Salgado volunteered this information, the jury was aware that appellant had three prior felony convictions in 1988.

We also take into consideration that the disputed evidence appellant complains of is somewhat removed from the main issue of whether appellant had the specific intent to kill Mrs. Salgado on September 25, 2004. Moreover, the evidence that appellant tried to kill Mrs. Salgado was clear and convincing. Mrs. Salgado testified, and J.s testimony corroborated, that appellant raised the knife in his right hand and was bringing it down toward Mrs. Salgado when he himself was stabbed and subsequently dropped the knife. (People v. Hardy, supra, 33 Cal.2d at p. 61.)

As noted above, the determination whether an error in the admission of evidence is incurably prejudicial is, by nature, speculative. Hence, it [is] a rare case in which the merits of a mistrial motion [are] so clear that counsels failure to make the motion amount[s] to ineffective assistance. (People v. Jennings (1991) 53 Cal.3d 334, 380, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) This is not one of those rare cases. Following this reasoning, any failure of counsel to request a mistrial at this juncture of the trial did not prejudice appellant, and counsel cannot be deemed ineffective. (Strickland v. Washington, supra, 466 U.S. at p. 687.)

3. Sanitization of prior convictions and exclusion of drug use

Appellant contends the trial court erred when it improperly limited impeachment of Mrs. Salgado by sanitizing evidence of her prior felony convictions. Appellant also contends the court should have allowed him to present evidence of Mrs. Salgados use of methamphetamine and connected prior arrests. We disagree.

Prior to trial, the prosecution moved to exclude evidence of Mrs. Salgados prior arrests, charges, and convictions, as well as any mention of her narcotics addiction, narcotics convictions, or use of a methadone program. The trial court determined that Mrs. Salgado could be impeached with a 1984 felony conviction and a 1982 felony conviction, both crimes of moral turpitude. Later, defense counsel requested that he be allowed to put on evidence naming Mrs. Salgados convictions (one for welfare fraud the other for dissuading a witness). The trial court denied the request, stating:

In thinking about that, I think that the argument or the reasoning that it could be more prejudicial than probative as far as the exact charge itself that we often consider and the facts we weigh in determining whether or not a defendant can be impeached, although they dont have the same magnitude of force when its dealing with a witness, I think given the fact they are so old, that Im going to deny your request.

The trial court also granted the Peoples motion to exclude evidence of Mrs. Salgados drug addiction, drug-related convictions, and use of a methadone program, with the exception of evidence that she was under the influence within a 48-hour period of the incidents in January 2003, August 2004, and September 2004.

At trial, Mrs. Salgado admitted the 1982 and 1984 convictions for crimes involving moral turpitude. It was stipulated that these were felonies. She also acknowledged being in a methadone program and having missed her treatment on January 26, 2003, August 30, 2004, and September 25, 2004. She denied taking methamphetamine within 48 hours of any of those dates. When asked why she remembered so clearly, she stated, Because I dont do that. When asked You dont do methamphetamine? she responded, No. I was clean. I was going to the clinic. I was clean. I struggled hard on this clinic. Im proud of my successfulness with it. Defense counsel asked whether she meant she had never used methamphetamine, but the trial court sustained the prosecutors objection.

Later, defense counsel sought to present testimony from a police officer that Mrs. Salgado had been involved in two under the influence arrests involving methamphetamine. The prosecutor argued that neither of the arrests occurred anywhere close in time to these incidents. When asked by the court whether that was the case, defense counsel stated, I dont recall, your Honor. The trial court then denied defense counsels request.

Appellant testified that he brought Mrs. Salgado methamphetamine on September 25, 2004, because she requested it. He also testified that she smoked it. Office Nacua testified that he did not notice Mrs. Salgado displaying any symptoms of methamphetamine use when he responded to the incident on that day, but he was unable to rule out recent methamphetamine use.

The trial court instructed the jury that it could consider Mrs. Salgados felony convictions in determining whether to believe her testimony. (CALJIC Nos. 2.20, 2.23)

Appellant first claims the trial court abused its discretion in sanitizing Mrs. Salgados prior convictions because there are no published decisions sanctioning the sanitization of priors for other witnesses.

A prior felony conviction is admissible to impeach a witness where the offense involves moral turpitude, although the trial court has discretion under Evidence Code section 352 to bar the use of such a prior conviction. (Cal. Const., art. I,  28, subds. (d), (f); Evid. Code,  788; People v. Castro (1985) 38 Cal.3d 301, 305-306, 314; People v. Green (1995) 34 Cal.App.4th 165, 182.) A crime of moral turpitude reflects directly on the honesty of a witness. (People v. Hunt (1985) 169 Cal.App.3d 668, 675; People v. Boyd (1985) 167 Cal.App.3d 36, 45.)

In exercising its discretion, the trial court is guided but not bound by the following factors: (1) the relationship between the offense underlying the prior conviction and the credibility of the witness; (2) whether the prior felony is near or remote in time; (3) the similarity of the prior felony conviction to the current charged offense; and, when applicable, (4) what effect a decision not to testify may have on the defense. (People v. Castro, supra, 38 Cal.3d at pp. 307, 312-313; People v. Beagle (1972) 6 Cal.3d 441, 453.) When, as here, the witness subject to impeachment is not the defendant, those factors prominently include whether the conviction (1) reflects on honesty and (2) is near in time. (People v. Clair (1992) 2 Cal.4th 629, 654, citing People v. Woodard (1979) 23 Cal.3d 329, 335-337.) The trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. (People v. Green, supra, 34 Cal.App.4th at pp. 182-183.)

A witness may be impeached with the name, type, date, and place of a prior felony conviction, but not the underlying circumstances and facts of the offense. (People v. Allen (1986) 42 Cal.3d 1222, 1270; People v. Santos (1994) 30 Cal.App.4th 169, 176-177.) A trial court may exercise its discretion to sanitize the descriptions of prior convictions where the nature of the unsanitized prior convictions would be more prejudicial than probative of the witnesss credibility. (People v. Castro, supra, 38 Cal.3d at pp. 305-306, 319; People v. Massey (1987) 192 Cal.App.3d 819, 825.) Sanitizing prior convictions is typically reserved for cases in which the impeaching offenses are similar to the current charges, thereby rendering them more prejudicial than probative. (See, e.g., People v. Heckathorne (1988) 202 Cal.App.3d 458, 464, fn. 2.) But sanitization of a prior felony conviction properly admitted for impeachment purposes is an exceptional step for a trial court to take. The Supreme Court in People v. Rollo (1977) 20 Cal.3d 109, described it as giving the defendant the archetypal Hobsons choice of (1) remaining silent on the point and subjecting himself to the speculation by the jury, or (2) divulging the nature of his prior conviction and incurring an equally grave risk that the jury will draw an impermissible inference of guilt. Either way leads to prejudice . (Id. at p. 120.)

Nothing in our analysis of this issue leads us to believe that sanitization of the prior convictions of a witness other than the defendant is forbidden. Neither Evidence Code section 352 nor 788, which, when read together clearly provide discretion to the trial judge to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice [and neither statute] is limited in its application to criminal defendants. (People v. Woodard, supra, 23 Cal.3d at p. 337.) It would follow that a prior conviction may be sanitized where appropriate, even if the witness is not the defendant.

The instant case, in our view, did not present the extraordinary circumstances in which sanitization was required. We need not, however, determine whether the trial court abused its discretion in sanitizing the witnesss priors because if it did, such error was not prejudicial.

Mrs. Salgado suffered prior convictions for dissuading a witness in 1982 and welfare fraud in 1984. Neither of these felonies is a particularly heinous crime. When the court sanitized the convictions as felonies involving moral turpitude, the jurors could well have speculated her prior offenses were more heinous than they actually were. Thus, the courts decision to sanitize her convictions most likely assisted appellant rather than prejudiced him. The introduction of a sanitized conviction is not an abuse of discretion even if it results in the possibility of jury speculation. (People v. Massey, supra, 192 Cal.App.3d at p. 825.)

We also reject appellants claim, made for the first time on appeal, that the trial courts sanitization of Mrs. Salgados prior convictions was a violation of due process. A defendants failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Seijas (2005) 36 Cal.4th 291, 302.) On the merits: generally speaking, the admission of relevant evidence (e.g., sanitized priors) will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1095.) Neither is the application of ordinary rules of evidence to exclude defense evidence on a minor or subsidiary point constitutional error. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)

Appellant also contends that the trial court violated his constitutional right to cross-examine and confront witnesses when it did not allow him to present evidence that Mrs. Salgado was under the influence of methamphetamine at the time of the incident. Specifically, appellant protests the fact that he was not allowed to cross-examine Mrs. Salgado on whether she had ever used methamphetamine. He also claims the trial court abused its discretion when it ordered him to release a proposed impeachment witness, a police officer, who would have testified that Mrs. Salgado had two arrests for being under the influence.

We note again that appellant did not raise these constitutional issues at trial, thereby waiving the issue on appeal. (People v. Seijas, supra, 36 Cal.4th at p. 302.)

Appellant also seems to argue that the trial court abused its discretion pursuant to Evidence Code section 352 by excluding the methamphetamine evidence. Our review of the record shows that the trial court excluded this evidence on grounds that it was irrelevant, not that it was more prejudicial than probative. Under an abundance of caution, we will treat appellants claim as an argument that the trial court abused its discretion in excluding this evidence as irrelevant.

Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The trial court has broad discretion in determining the relevance of evidence [citations] . (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)

Here, the trial court determined that evidence of Mrs. Salgados drug addiction or use of drugs other than at the time of the incidents, through either her own testimony or through the testimony of the proposed defense witness Officer Hatchell, was not relevant. We agree. Such evidence would have had no demonstrated bearing on Mrs. Salgados ability to perceive the events of September 25. And, we note, not all evidence of Mrs. Salgados drug use was excluded. The trial court allowed evidence of drug use within 48 hours of that incident and the earlier incidents of violence as well. And while defense counsel argued that the effects of drugs could extend beyond the 48-hour period, the trial court stated that, if defense counsel wished to extend this period, he would need to provide more evidence, which he apparently could not do. In addition, Mrs. Salgado testified that she had been in a methadone treatment program for 10 years, thereby acknowledging that she had used some form of illegal drugs in the past. And appellant was allowed to testify that he brought Mrs. Salgado methamphetamine on September 25, 2004, at her request, and that she smoked it.

We find that the trial court did not abuse its discretion in finding the additional evidence of Mrs. Salgados drug use irrelevant.

4. Cumulative error

Appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellants claims of error and/or found, assumed or not, any errors to be not prejudicial on an individual basis. Viewing the errors as a whole, we find that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)

5. Presentence credits

Finally, appellant, a third striker, contends that the trial court erroneously applied section 2933.1 in limiting his presentence credits and that he is entitled to precommitment conduct credits under section 4019. Respondent agrees, as do we.

The probation officers report stated that appellant had been arrested on September 25, 2004, and recommended he be granted credit for 396 days actually served and 59 days of conduct credit, calculated at 15 percent of actual days pursuant to section 2933.1, because appellant has been convicted of a violent felony as defined in Section 667.5(c) . At sentencing the court appeared to adopt the recommendation of the probation officer and stated appellant was to receive 396 actual days, 59 good and work for a total of 455 days. (Unnecessary capitalization omitted.)

Appellant argues, and respondent concedes, that section 2933.1 does not apply to this case. That section limits presentence credits to 15 percent in all cases where the instant conviction is for a violent crime as defined in section 667.5, subdivision (c). (People v. Caceres (1997) 52 Cal.App.4th 106, 110.) Section 667.5, subdivision (c) does not include attempted manslaughter, punishable under sections 193 and 664, in its list of violent crimes.

Section 667.5, subdivision (c)(7) does include any felony punishable by life imprisonment, and while appellant received an indeterminate sentence of 25 years to life, our Supreme Court has determined that an indeterminate term imposed due to recidivism, as here, does not qualify the current offense as a violent felony under section 667.5, subdivision (c)(7). We conclude sections 2933.1 and 667.5(c)(7) limit a defendants presentence conduct credit to a maximum of 15 percent only when the defendants current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist. (People v. Thomas (1999) 21 Cal.4th 1122, 1130.)

Therefore, the award of precommitment conduct credits to a defendant sentenced under the three strikes law, and whose current felony is not one enumerated in section 667.5, subdivision (c), is calculated by reference to section 4019. (People v. Caceres, supra, 52 Cal.App.4th at p. 110.) Under section 4019, a defendant is entitled to accrue conduct credits based on a formula which divides the days of actual custody credit, including the date of sentencing, by four and then multiplies the result, excluding any remainder, by two. (Caceres, at p. 110.) Based on this formula, appellant would be entitled to a total of 594 days precommitment credit, comprising 396 days actual custody credit and 198 days of conduct credits.

6. Abstract of judgment

The trial court imposed and stayed a section 667, subdivision (a) enhancement on count 2 and imposed the same enhancement to run concurrently on count 5, but the minute order and the abstract of judgment do not reflect this. Respondent contends, and we agree, that the abstract of judgment should be modified to reflect the correct sentence.

DISPOSITION

The judgment is modified to award appellant an additional 139 days of presentence conduct credit; as modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the additional conduct credits and to correctly indicate the section 667, subdivision (a) enhancements imposed and stayed on count 2 and imposed to run concurrently on count 5, and forward a certified copy thereof to the Department of Corrections.

DAWSON, J.

WE CONCUR:

_______________________________

HARRIS, Acting P.J.

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KANE, J.

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

^[2]The trial court struck the reference to prison.

^[3]The jury had also been given this same instruction at the start of trial.