Filed 7/19/13 P. v. Wade 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E056136

v.                                                                       (Super.Ct.No. FBA1000793)

WILLIAM EARL WADE,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Victor R. Stull,

Judge. Affirmed.

         John D. O‟Loughlin, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.




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                                    INTRODUCTION

       On December 9, 2010, an information charged defendant and appellant William

Earl Wade with criminal threats under Penal Code section 422 (count 1), and dissuading

a witness from testifying under Penal Code section 136.1, subdivision (a)(1), (count 2).

The information also alleged that defendant had suffered a prior conviction under Penal

Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through

(i).

       On December 21, 2010, defendant pled not guilty to all counts. On February 4,

2011, jury trial commenced. On February 15, 2011, defendant‟s motion pursuant to

Penal Code section 1118.1, to dismiss count 1, was denied. On February 16, 2011, the

jury found defendant guilty on both counts, and on March 25, 2011, defendant admitted

the prior allegation charged in the information.

       On April 22, 2011, the trial court denied probation and sentenced defendant to

prison for six years as follows: on count 1—the upper term of three years, doubled under

Penal Code section 1170.12; and count 2—365 days in county jail to run concurrent to

count 1. The court ordered defendant to pay various fines and fees, and awarded

defendant 285 days of credit for time served.

       After a timely notice of appeal was not filed on defendant‟s behalf, we granted

defendant‟s petition for habeas corpus to establish constructive timely filing of a notice of

appeal.




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                                STATEMENT OF FACTS

       Debra Harper lived with her fiancé (defendant) and their child in a trailer in

Barstow. Defendant owned the trailer and held the lease at the trailer park.

       On May 29, 2010, Harper and defendant had been drinking with neighbors and

Harper passed out. When she woke up, defendant was standing over her with a pipe.

Harper had injuries to her head and elbow, and there was blood on her and the pipe, but

she did not see any blood on defendant. Harper jumped up, started screaming and

running, called the police, and locked herself in the bathroom with her child. Harper

assumed that defendant hit her with the pipe while she was sleeping.

       Barstow Police Officers D‟Andrea and Silva responded to the 911 call. Officer

D‟Andrea contacted Harper, who was bleeding profusely and had contusions on her head,

arm, and leg. The officers asked defendant to come out of the residence; he complied.

Officer Silva questioned defendant. Officer D‟Andrea spoke with Harper inside. Harper

was shaken and in fear for her life. She told Officer D‟Andrea that she had been

assaulted by defendant with a metal pipe, which she showed him. She said that defendant

told her that if the police were involved, “he would slit her throat.”

       Defendant was arrested. Harper testified at defendant‟s trial, and defendant was

eventually acquitted.

       While defendant was in jail, Harper sold his truck. When defendant returned to

the residence, after being released from jail, he found out that his truck had been sold.

This upset defendant. Harper testified that defendant “kept getting on [her] nerves” about

the truck, and she “was just trying to put him back in jail.” She admitted calling 911 on

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several occasions, “almost every day.” Harper admitted that her 911 calls were “prank

calls” because she “needed [defendant] to get away from [her].”

       Harper testified that she called the Barstow Police Department and spoke to a

dispatcher named “Dorothea.” She told the dispatcher that defendant was harassing her.

She stated that she had put defendant in jail for spousal abuse, and that she “lied on the

witness stand” because defendant convinced her that “everything was going to change”

once he was released from jail. Harper eventually pled guilty to perjury for lying at

defendant‟s trial.

       Harper also testified that she spoke to “Victoria in Victorville” about being

relocated to a domestic violence shelter. Harper wanted to relocate because defendant

was giving her a hard time about the truck.

       Barstow Police Officer Nevarez responded to Harper‟s 911 calls on August 31 and

September 4, 2010. On each occasion, Harper asked the officer to make defendant leave.

Officer Nevarez determined that there had been nothing but a verbal argument and

explained to Harper that defendant had not done anything wrong; hence, there was no

probable cause to arrest him or make him leave.

       On September 7, 2010, Harper and defendant were preparing to move. Some of

Harper‟s belongings were in the front yard and defendant wanted Harper to bring the

items in the house. Harper told defendant that it was too hot outside and that she was

going to wait until it was cooler outside. Harper was talking on the telephone to her son.

Defendant told her to “„get your ass up, go out there and put [the] clothes away. Unplug

that phone. Don‟t talk on the phone all day long.‟”

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       Harper‟s son testified that as he was talking to his mother on the telephone,

defendant and his mother began to argue. He heard defendant tell Harper, “„Bitch, you

working on another ass whooping. Don‟t make me finish what you started.‟” Then the

telephone line went dead. The son tried to call Harper back, but the call went directly to

voicemail. The same thing happened when Harper‟s son tried calling her on her cell

phone. The son then called the police.

       Officer D‟Andrea and Corporal Torro responded to the 911 call. Officer

D‟Andrea testified that he positioned himself outside the residence, beneath a window,

and listened to a loud argument between defendant and Harper. He heard Harper say that

she was going to take “letters to the District Attorney‟s Office.” Defendant told Harper

to “go outside and pick everything up.” Harper yelled, “„You‟re not going to keep man-

handling me,‟” and said that she was “going to involve the police.” Defendant

responded, “„They‟re not going to believe you. You‟re not credible. You lie.‟”

Defendant then stated, “„Bitch, I‟ll smack your face off.‟”

       At that point, the officers entered the residence. Defendant was asked to step

outside with Corporal Torro; he complied. Officer D‟Andrea entered the residence and

spoke with Harper alone. The officer recorded Harper‟s entire statement. There were no

indications that Harper was under the influence of alcohol or drugs. Harper appeared

afraid, but there were no physical injuries to her or damage to the trailer. Harper was

upset with defendant about how she was being treated.

       Harper then gave Officer D‟Andrea two letters. Harper testified that while she

was visiting defendant in jail, he showed her two letters through the glass partition of the

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jail. At that time, Harper looked at the letters, but denied reading them. The letters urged

Harper to get a notarized statement of retraction of her charges against defendant. Harper

testified that she never read the letters in jail; however, she did read the letters after

defendant returned home after being acquitted and released from jail.

       Harper told Officer D‟Andrea that she was on the phone with her son. Defendant

got upset with her; he told her to get off the phone and go outside to pick things up.

Defendant unplugged the phone and ripped the jack out of the wall. Harper testified that

she told Officer D‟Andrea that defendant was bragging because he “beat the case.”

Harper denied lying on the stand to protect defendant and denied helping defendant “beat

the case.”

       Harper told Officer D‟Andrea that defendant said, “„I might as well finish what I

started. . . . [Y]ou keep calling your family. They‟re not going to make it on time.

You‟ll be dead before they get here.‟”

       On the witness stand, Harper denied that defendant told her that he was going to

finish what he started, and she denied telling Officer D‟Andrea that as well. Harper

testified that she did not believe that the officers could have heard anything clearly with

the air conditioner running, music playing, the TV on, and the two of them yelling at each

other. Harper also denied telling the officer that defendant told her, “[t]he police aren‟t

going to make it in time.” She did admit telling Officer D‟Andrea that she was in fear for

her life because she was trying to get rid of defendant.




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                                         ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. On April 29, 2013, defendant submitted a 17-page typewritten brief. In his

supplemental brief, defendant claims that: (1) the trial court abused its discretion under

Evidence Code section 352; and (2) the trial court erred in sentencing defendant to the

upper term. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error.

       1. Evidence Code Section 352

       First, we address defendant‟s Evidence Code section 352 argument. In this case,

the prosecutor presented photographic exhibits from a prior domestic violence incident,

which had resulted in an acquittal. Defendant, in essence, argues that the probative value

of the photographs was not outweighed by the prejudicial effect of the jury seeing these

photographs.

       “Under Evidence Code section 352, the trial court enjoys broad discretion in

assessing whether the probative value of particular evidence is outweighed by concerns

of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a

discretionary power is statutorily vested in the trial court, its exercise of that discretion

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„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.]‟ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th

1060, 1124-1125.) “That discretion is only abused where there is a clear showing the

trial court exceeded the bounds of reason, all circumstances being considered.” (People

v. Martinez (1998) 62 Cal.App.4th 1454, 1459.)

       Here, the jury heard testimony about and saw photographs from the May 29, 2010,

incident. Exhibits 6, 8, and 9 were pictures showing Harper with her injuries. Exhibit 7

was a picture of the pipe used to inflict the injuries. Defendant “does not dispute the

probative value of the Evidence Code [section] 1109 evidence, in fact the evidence would

have been welcomed to the extent it provided a foundation of credibility and the

incompatibility of [defendant] and Ms. Harper.” We agree with defendant.

       The probative value of the photographs was high. Here, defendant was charged

with making criminal threats and dissuading a witness. At trial, Harper tried to change

her prior statements and stated that defendant neither harmed her nor threatened to harm

her. She simply wanted to put him in jail because he was getting on her nerves. The

photographs, however, showed evidence to the contrary. The evidence was highly

probative.

       On the other hand, the evidence was not unduly prejudicial. “„“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.”‟ [Citation.]” (People v. Miller (2000) 81 Cal.App.4th 1427, 1449.)

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Here, the pictures were not so inflammatory that it might have caused the jurors to be

distracted from their main task of evaluating guilt in the current case or to be tempted to

convict or punish defendant for his prior misconduct. In this case, there was ample

testimony from officers at the scene and from Harper‟s son to corroborate Harper‟s own

statements before trial that defendant made criminal threats. The evidence was simply

used to challenge Harper‟s credibility at trial.

       In balancing the probative versus the prejudicial value of the admitted evidence,

we find that the trial court did not abuse its discretion. The trial court properly concluded

that the potential for prejudice was outweighed by the probative value of the evidence.

       2. Defendant‟s Sentence

       Next, defendant contends that the “trial court erroneously found aggravating

factors when it applied the high term.” In short, defendant contends that the trial court‟s

imposition of the upper term on count 1—using the May 29, 2010, incident as an

aggravating factor—was erroneous.

       “The midterm is statutorily presumed to be the appropriate term unless there are

circumstances in aggravation or mitigation of the crime. [Citations.]” (People v. Avalos

(1996) 47 Cal.App.4th 1569, 1582-1583.) “„Sentencing courts have wide discretion in

weighing aggravating and mitigating factors [citations], and may balance them against

each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm

unless there is a clear showing the sentence choice was arbitrary or irrational.‟” (Id. at

p. 1582.) Moreover, “[A] single factor in aggravation suffices to support an upper term.”

(People v. Osband (1996) 13 Cal.4th 622, 730, distinguished on other grounds by People

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v. Lucero (2000) 23 Cal.4th 692, 714.) The trial court need not explain its reasons for

rejecting mitigating factors. (People v. Avalos, at p. 1583.)

          In this case, at the sentencing hearing, defense counsel argued that the May 2010

incident could not be used as an aggravating factor since defendant had been acquitted in

that matter. Contrary to defendant‟s assertion, the trial court agreed with defense

counsel. The court stated: “With respect to the reference in the probation report to the

prior case, I do agree with you. And in fixing the term that I have decided to impose in

this case, I disregard it because I don‟t think it is appropriate.” Hence, the trial court did

not use the acquitted offense as an aggravating factor. Instead, the trial court, in

sentencing defendant to the upper term, stated that it was doing so because defendant

threatened violence and because defendant‟s prior offenses were numerous and indicated

a pattern of increasing violence.

          Based on the above, we do not find the court‟s sentencing decision arbitrary or

irrational. There was no abuse of discretion.

          We have conducted an independent review of the record and find no arguable

issues.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               McKINSTER
                                                           J.

We concur:



RAMIREZ
                    P. J.



CODRINGTON
                       J.




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