Filed 5/4/15 P. v. Wilson CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                            C075081

                   Plaintiff and Respondent,                                   (Super. Ct. Nos.
                                                                            NCR85279, NCR85912)
         v.

ANDREA RAE WILSON,

                   Defendant and Appellant.




         A jury convicted defendant Andrea Rae Wilson of assault with a deadly weapon.
(Pen. Code, § 245, subd. (a)(1).)1 In an unrelated case, defendant pleaded guilty to
felony petty theft. (§ 666.)




1 Undesignated statutory references are to Penal Code.



                                                             1
       Sentenced to state prison for two years for the assault and an additional eight
months for the theft, defendant appeals. She contends the trial court erroneously
excluded evidence of the assault victim’s prior violent act. She also contends her counsel
performed ineffectively by failing to subpoena witnesses to lay the foundation for the
victim’s positive drug screening and by failing to subpoena defendant’s medical records.
She further contends there was insufficient evidence to prove she had served the prior
custodial time required for felony petty theft. Finally, she contends the court made a
clerical error in the abstract of judgment. We shall affirm the judgment but direct the
trial court to correct this clerical error.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On September 25, 2012, defendant, along with her two daughters, went to the
home of Michael and Anjanette Eakin. The two families engaged in a verbal and
physical altercation, with Mrs. Eakin either chasing off or attacking defendant’s family
with a baseball bat, and defendant gaining control of the bat and making some contact of
her own. During the melee, Mrs. Eakin suffered visible injury. Defendant was convicted
of assault with a deadly weapon.
Background Leading to the Fight

       The teenaged daughters of defendant and Mrs. Eakin had apparently once been
friends. While the record is unclear as to why this friendship soured, five or six months
prior to the altercation, defendant allegedly made phone calls to the Eakin home in which
she swore at Mr. Eakin. After school, on the day of the attack, defendant’s younger
daughter told defendant that Mrs. Eakin had slapped her. Defendant picked up both girls
and drove to the Eakin home.




                                              2
The Fight

       Accounts of the fight, which came from the two respective families, differed
wildly.2

       Defendant’s witnesses3 testified that defendant calmly came to the Eakin house to
discuss the matter of the slapping incident only after trying to resolve it with school
officials, and the Eakins instigated a fight. Mrs. Eakin attacked defendant with the
baseball bat. Defendant tried to grab the bat from Mrs. Eakin, but it slipped—hitting
Mrs. Eakin. Defendant tried again and was able to get it away from her. While they
were struggling, Mr. Eakin came out of the house with a gun, and defendant and her
family fled.

       The Eakins testified that defendant came to the door in a rage. Mr. Eakin
proceeded outside to try to resolve matters. Mrs. Eakin then came out of the house with
the bat when she thought her three-year-old child may have toddled into the fracas.
Defendant took the bat from Mrs. Eakin and hit her in the head with a “home run hit”
four or five times. Defendant then handed the bat off to her daughter who hit Mrs. Eakin
another 20 times. Mr. Eakin then retrieved a BB gun pistol to scare off defendant and her
family, at which point they fled, almost running over Mrs. Eakin.
Evidentiary Determinations

       Two items of defense-proffered evidence were excluded after a belated conference
in chambers the morning of trial.4


2 Prior to sentencing, the trial court made particular note of the nature of the testimony:
“I sat in this very chair and heard the testimony throughout the jury trial in this matter.
And I have to say that I find much of what I heard to be somewhat unbelievable to some
extent, not only from your part [(i.e., defendant’s)] but even from the victims.”
3 Defendant did not testify at trial.

4 The trial court admonished counsel for failing to raise these evidentiary issues in
written motions in limine by the court-imposed deadlines.

                                              3
       First, the defense offered evidence that Mrs. Eakin had a prior conviction for
slapping her own teenaged daughter. The trial court ruled that the conviction was not
admissible as aggressive character evidence because the crime did not involve moral
turpitude. Following an Evidence Code section 352 analysis, the court further ruled that
the underlying conduct was inadmissible.

       Second, defense counsel also tried to admit Mrs. Eakin’s medical records. These
records were initially subpoenaed by the prosecution to show the extent of her injuries,
but when the prosecution decided not to use them, the defense sought to admit them to
demonstrate there were drugs in Mrs. Eakin’s system at the time of the attack. Defense
counsel failed to subpoena an expert to lay the foundation for how the drug tests were
administered. The trial court ruled the records were inadmissible without such a
foundation.
John Egolf’s Testimony

       The defense called John Egolf, the nurse practitioner who treated defendant at the
emergency room. Egolf did not bring defendant’s chart with him to court. Both
attorneys asked questions that Egolf was unable to answer without consulting his chart.
These questions were related to the specific nature of an injury to defendant’s hand.
An Unrelated Plea Bargain

       In an unrelated case, defendant pleaded guilty to felony petty theft with priors.
(§ 666.) As part of this plea, she admitted to three prior theft-related offenses. She was
not asked, nor did she offer, whether she had served custodial time for any of these
offenses.




                                             4
                                       DISCUSSION

         I. The Trial Court Did Not Violate Defendant’s Rights by Excluding
                      Evidence of Victim’s Previous Violent Act

       Defendant contends the trial court erred in excluding evidence regarding Mrs.
Eakin striking her own teenaged daughter. A trial court has discretion to weigh the
probative value of any evidence against the probability that it may consume too much
time, create a substantial danger of undue prejudice, confuse the issues, or mislead the
jury. (Evid. Code, § 352.) “It is the exclusive province of the trial court to determine
whether the probative value of evidence outweighs its possible prejudicial effect.
[Citation.] The trial court’s exercise of discretion on this issue will not be disturbed on
appeal absent a clear showing of abuse.” (People v. Goldman (2014) 225 Cal.App.4th
950, 959.)

       In excluding this evidence, the trial court reasoned that the specific conduct
“which is in essence akin to corporal punishment” was not sufficiently probative of Mrs.
Eakin’s aggressive nature to overcome the potential to confuse the jury of the factual
distinctions between the interfamily and intrafamily disputes in this case. The concern
for this potential confusion is certainly not a clear showing of abuse.5 We will not
disturb this ruling.

    II. Neither Defense Counsel’s Failure to Subpoena an Expert Witness to Lay
       the Foundation for the Victim’s (Mrs. Eakin’s) Positive Drug Screening
           nor Defense Counsel’s Failure to Subpoena Defendant’s Medical
               Records Violated Defendant’s Right to Effective Counsel

       Defendant asserts defense counsel rendered ineffective assistance by failing to
subpoena an expert witness to lay the foundation for medical records to establish that




5 In fact, the trial court and counsel spent nearly a page of the record attempting,
themselves, to figure out who was slapping whom.


                                              5
there were drugs in Mrs. Eakin’s system at the time of the attack, and by failing to
subpoena defendant’s medical records to establish the specific injury to defendant’s hand.

       To establish ineffective assistance of counsel, defendant must demonstrate that
counsel’s performance was unreasonably deficient, and that defendant suffered prejudice
as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692
[80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Counsel’s ineffectiveness becomes prejudicial when there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694 [80 L.Ed.2d 674 at p. 698].)

       “It is not necessary for us to consider the performance prong of the test before
considering whether the defendant suffered prejudice as a result of counsel’s alleged
deficiencies. [Citation.] ‘If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should be followed.’ ” (People v.
Goldman, supra, 225 Cal.App.4th at pp. 957-958.) That is the course we follow here.
    A. Defense Counsel’s Failure to Subpoena an Expert Did Not Cause Prejudice
       Defendant contends that a particular medical report would have shown that “[Mrs.
Eakin] had THC [(marijuana agent)] and opiates in her system at the time of this
occurrence.” The only reason this evidence was not admitted was there was no expert
subpoenaed to lay the foundation for the report. However, the trial court explicitly
permitted defense counsel to question Mrs. Eakin about her own drug use. Mrs. Eakin
admitted to having both drugs in her system at the time of the attack. Consequently, there
is not a reasonable probability that the jury would have reached a different verdict had
Mrs. Eakin’s medical report corroborated her own self-incrimination.6



6 The trial court explicitly made this point, calling the drug screening “irrelevant” after
Mrs. Eakin testified.


                                              6
       B. Defense Counsel’s Failure to Subpoena Defendant’s Medical Records
                             Did Not Cause Prejudice
       Defendant contends that Nurse Practitioner Egolf, who treated defendant, was
unable to fully testify because defense counsel did not subpoena Egolf’s treating report.
The specific questions Egolf was unable to answer involved the exact nature of
defendant’s injuries and whether or not they were consistent with the possibility that Mrs.
Eakin struck defendant with the bat.7

       However, the question this evidence would answer is not in dispute. Mr. Eakin
testified, “My wife swung the bat like that, it probably hit [defendant’s] fingers.” Mrs.
Eakin testified, “I was trying to keep [defendant] away from me and she caught the bat.”
Defendant’s teenaged daughter testified, “she [(Mrs. Eakin)] hit my mom in the wrist.”
Defendant’s younger daughter testified, “My mom went to get the bat out of her [(Mrs.
Eakin’s)] hands and it hit her wrist.” In a record replete with vastly conflicting stories,
this is one place where the testimony seems rather consistent. Mrs. Eakin’s bat came in
contact with defendant’s fingers, hand, or wrist.

       There is not a reasonable probability that the jury would have reached a different
verdict had Egolf been able to specifically testify whether defendant’s injuries were
consistent with being hit with a bat; all parties agreed she was hit by one.8




7 Presumably, although not addressed in defendant’s brief, this testimony was being
elicited to suggest defendant acted in self-defense, and that with an (alleged) broken
wrist, she would have been unable to hit Mrs. Eakin in the manner described.
8 To the extent defendant sought these records in order to show that she had incurred a
broken wrist in this fracas, Nurse Practitioner Egolf testified his report did not include a
diagnosis of whether or not the wrist was broken, and therefore it could not have been
used for this purpose.


                                              7
          III. Defendant’s Plea of Guilty Was Sufficient to Find Her Guilty

       To convict defendant of felony petty theft with a prior, the prosecution had to
prove defendant (1) had been convicted of three or more offenses in an enumerated
statutory list, (2) had served a term of imprisonment for those offenses, and (3) had
committed petty theft. (§ 666, subd. (a).) Defendant claims there was no substantial
evidence to prove she had served custodial time on the prior offenses she admitted to in
her guilty plea of felony petty theft.

       “A guilty plea admits every element of the offense charged and is a conclusive
admission of guilt. [Citations.] It waives any right to raise questions about the evidence,
including its sufficiency.” (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.)

       The specific count to which defendant pleaded guilty alleged that she “did
unlawfully and in violation of Penal Code Section 484[, subdivision] (a), steal[,] take[,]
and carry away the personal property of Wal-Mart. It is further alleged that Defendant
was previously convicted in the State of California of the crime(s) listed below [(three
§ 666-delineated offenses)] and served a term for each crime in a penal institution and
was imprisoned therein as a condition of probation.” No one disputes that defendant
made a free, knowing, intelligent, and voluntary plea of guilty to this count in order to
have another case dismissed. Consequently, the evidence is sufficient to support
defendant’s felony petty theft conviction under section 666.

                     IV. Clerical Error in the Abstract of Judgment

       In line with both parties’ agreement, we direct the trial court to correct the abstract
of judgment to reflect the court’s oral pronouncement of a one-third the middle term
sentence for the felony petty theft with a prior conviction (i.e., eight months; § 666)
rather than one-third of the upper term. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)




                                              8
                                      DISPOSITION

       The judgment is affirmed. The trial court is directed to correct the abstract of
judgment at item 1 to reflect a sentence of one-third of the middle term for the felony
petty theft with a prior conviction (i.e., eight months; § 666) rather than one-third of the
upper term, and is further directed to send a certified copy of this corrected abstract to the
Department of Corrections and Rehabilitation.




                                                         BUTZ                  , J.



We concur:



      BLEASE                 , Acting P. J.



      DUARTE                 , J.




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