Filed 9/26/16 P. v. Wells 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,
                                                                                           F070212
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F14903226)
                   v.

JAMES CARTER WELLS,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.

         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                         INTRODUCTION
         Defendant James Carter Wells was convicted by jury of inflicting corporal injury
on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)),1
assault with a deadly weapon, a brick (§ 245, subd. (a)(1)), and misdemeanor vandalism
(§ 594, subd. (a)(2)). In addition, the jury found true an enhancement alleging defendant
used a deadly and dangerous weapon in the commission of count 1. (§ 12022, subd.
(b)(1)).
         Defendant admitted he had suffered one prior strike (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and he
had served one prior prison term (§ 667.5. subd. (b)). In a bench trial, the court found
defendant had also suffered a prior serious felony conviction based on a 1983 burglary
conviction. Defendant’s sentence was enhanced by five years based on this conviction
pursuant to section 667, subdivision (a)(1). He received an aggregate prison term of 15
years.
         On appeal, defendant contends (1) the five-year enhancement based on his 1983
burglary conviction must be reversed because the trial court’s determination that the
offense qualified as a serious felony violated his Sixth Amendment right to a jury trial
and (2) the trial court erred in admitting evidence of two prior acts. In a supplemental
brief, defendant also asserts (3) one of the prior felony convictions used to enhance his
current sentence was subsequently reduced to a misdemeanor under Proposition 47, and
as a result, the enhancement must be stricken. We disagree, and affirm the judgment.
                          FACTUAL AND PROCEDURAL HISTORY
Prosecution’s Case
         On April 6, 2014, Denise Byrns went to defendant’s house in Fresno after
defendant contacted her earlier and asked her to come over. Byrns and defendant had

         1All   undefined statutory citations are to the Penal Code unless otherwise indicated.


                                                   2.
been in a dating relationship for 10 years and had lived together for part of that time.
According to Byrns, the couple had been fighting because Byrns was not spending
enough time with defendant. They made up after she came over.
       When Byrns arrived, she sat on defendant’s bed, watched television, and talked to
him. At some point, her phone rang, but she did not answer. Defendant asked Byrns
who was calling her and she told him it was “Darlene,” who was probably calling for a
ride. Defendant responded that he “was going to put a stop to that.” Byrns interpreted
this to mean defendant was going to tell Darlene not to speak to Byrns anymore. Byrns
became upset and threw some Fritos chips at defendant, one of which hit him in the head.
       Defendant grabbed Byrns by her neck with one hand and threw her onto the bed,
falling on top of her. The pressure on her neck caused her to gag. Defendant told Byrns
“[she would] never disrespect his house again.” When defendant got off Byrns, she
jumped out of the bed. Defendant pushed her back down and again told her she would
not “disrespect his house.” He squeezed Byrns’ neck again. She tried to get up but
defendant would not move.
       Defendant’s father opened the bedroom door and told defendant and Byrns “to
knock it off.” Byrns told defendant to “‘[g]et the hell away from [her]’” and ran outside
to her car. Defendant followed her outside, and as Byrns got into the driver’s seat of her
car, defendant threw a brick at her passenger side door, causing damage to the vehicle.
Defendant manually pulled Byrns’ window down. He then threw another brick through
Byrns’ driver side window, causing the glass to break and hit Byrns.
       Byrns drove off, pulled into the parking lot of a market across the street, and
called 911. The Fresno Police Department responded to the incident. After defendant
was advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), he told
police he had called Byrns earlier that day to discuss their relationship. The couple
eventually got into an argument over defendant’s new girlfriend, “Jamie.” Byrns threw a
handful of Fritos in defendant’s face and defendant told her to get out. Defendant

                                             3.
claimed he never threw a brick at Byrns’ passenger-side door. He admitted he had held a
brick while standing near her driver-side door, but claimed, “the brick slipped out of his
hands,” shattering the window. Defendant denied choking Byrns, but admitted he had hit
her in the past.
2007 Criminal Threats Incident
       The parties stipulated defendant suffered a prior misdemeanor conviction for
making criminal threats against Byrns in July 2007. Byrns testified that in May 2007,
following an argument, defendant left her several threatening voice messages. Defendant
left Byrns a message in which he stated, “‘You’re going to be missing a family member,
bitch.’” In his second message, he stated, “‘I’ll be over soon enough. It is about to start.
Oh, yeah, it started.’” In his final message, he told Byrns, “‘Get ready, I’m coming over.
Call the cops or do what you got to do, but you’ll feel it, oh, I guarantee it.’” After
receiving the third message, Byrns called the police and played the messages for them.
Defendant was arrested the following day.
       Byrns testified defendant had previously made similar threats, so she was not
afraid for her own safety. However, when defendant threatened her family, she became
afraid he was going to hurt her daughter.
2004 Window Shattering Incident
       Cheryl Dawn Wells testified at trial.2 Cheryl and defendant had been married for
15 years. They were divorced at the time of the trial. In February 2004, Cheryl and
defendant began arguing because Cheryl wanted to take their son to the park and
defendant did not want her to leave. Cheryl took their son and got into her truck.
Defendant followed her and started yelling, then threw something at her closed driver-
side window. The window shattered. Cheryl did not believe this was an accident
because she and defendant had been fighting.

       2We refer to Cheryl Wells by her first name because she shares the same last name as
defendant. No disrespect is intended.


                                              4.
Defense’s Case
       Defendant testified on his own behalf at trial. He explained while it was unusual
for him to yell at Byrns, it was not unusual for the couple to argue. He characterized their
relationship as “tumultuous” and stated they had “a love/hate relationship.”
       On April 6, 2014, defendant called Byrns between 7:30 and 8:30 a.m. to ask her if
she was going to come by his house that day. He wanted to talk to Byrns about the fact
he had been seeing Jamie. Byrns arrived sometime around 12:30 p.m. Defendant
apologized to Byrns for a previous incident.
       According to defendant, the couple used methamphetamine together. As
defendant was getting ready to go outside to smoke a cigarette, he told Byrns he was
seeing someone Byrns knew. Byrns threw some Fritos at defendant and angrily asked
him whom he was seeing. Defendant told her, “[D]o [not] disrespect me in my house like
that” and “If you’re going to act like that, you can just leave.” Byrns kept asking whom
he was seeing, and defendant eventually told her it was Jamie.
       Defendant said “that’s when all hell broke loose.” Byrns tried to slap defendant
and claw him. Defendant stood up and told her to get off him and to get out of his house.
Defendant’s father and sister started pounding on the door, and his father said “‘[k]nock
it off in there’” a couple of times. Byrns opened the door and left. Defendant followed
her outside and told her to leave.
       Defendant came out onto the porch, kicked a rock toward Byrns’ car, and told her
again to get out. After Byrns was verbally abusive to him, defendant approached her and
told her to shut up and to get into her car. Byrns stopped briefly at her trunk and said
things about drugs that defendant believed Byrns wanted his father to hear. Byrns was
standing by the driver’s side of her car, and they continued to argue back and forth when
defendant grabbed a loose brick off a wall. He told Byrns if she did not shut up and
leave, he was “going to bust the window out of her car.” He told her this again and made
an overhand throwing motion to “fake it … just to give a gesture that [he] was going to

                                               5.
bust her window if she didn’t listen ….” According to defendant, the brick slipped out of
his hand and broke the window.
        Byrns called defendant a “rotten SOB” and opened the car door to leave, brushing
glass off the seat with her hand while “[c]ussing [defendant] out the entire time.” Byrns
got into her car and shut her door, causing the glass that was still intact to fall into her
car. Byrns backed up, running over defendant’s foot. Defendant went back inside his
home.
Defendant’s 1983 Burglary Conviction
        Among other enhancements, the information charged defendant with a five-year
enhancement for the prior conviction of a serious felony, a 1983 burglary, based on
section 667, subdivision (a)(1).
        On August 29, 2014, defendant waived his right to a jury trial on the 1983
burglary conviction.
        On September 2, 2014, a bench trial commenced. Defendant’s trial counsel told
the court defendant was contesting the legal status of the burglary conviction. The trial
court took judicial notice of the jury verdict form in the prior burglary case, as well as an
unpublished appellate opinion from this Court of Appeal pursuant to People v. Woodell
(1998) 17 Cal.4th 448, 457 (“appellate opinions, in general, are part of the record of
conviction that the trier of fact may consider in determining whether a conviction
qualifies under the sentencing scheme at issue”).
        Defense counsel argued the prior burglary conviction was not a serious felony,
explaining the first degree burglary conviction had been subsequently reduced to a
second degree conviction. The prosecutor clarified the conviction was reduced to second
degree burglary because the jury was not properly instructed on the law as it pertained to
burglary in 1982. Prior to January 1, 1983, burglary of a residence during the nighttime
constituted a first degree burglary, whereas burglary of a residence during the daytime
was only a second degree burglary. In 1983, the law was amended to eliminate the

                                               6.
distinction between a daytime and nighttime burglary. Thus, according to the prosecutor,
although defendant’s prior conviction was for a second degree burglary, the fact the
conviction involved a residential burglary qualified it as a serious felony.
       The trial court agreed. The court explained that pursuant to People v. Guerrero
(1988) 44 Cal.3d 343, it was authorized to review defendant’s record of conviction in
making its determination. In concluding the People had proven the prior conviction
qualified as a serious felony, the court relied on the following documents: (1) an
information filed in Fresno Superior Court case No. 289374-1 showing defendant was
charged with the October 31, 1982, entry of an occupied residence with the intent to
commit larceny; (2) the Report of Probation Officer (RPO), which described the prior
crime as a residential burglary; (3) a preliminary hearing transcript dated November 23,
1982, which made clear from the testimony of the victim that the crime involved the
burglary of an occupied residence; (4) an appellate opinion from this Court of Appeal,
with a recitation of facts indicating the crime was a residential burglary occurring during
the daytime. The opinion also explained the reason defendant’s first degree burglary
conviction was reduced to second degree burglary was based on the fact then-existing
law qualified a daytime burglary as only a second degree burglary; (5) an abstract of
judgment dated May 25, 1983, which reflected a conviction of first degree burglary, and
an amended abstract of judgment showing the prior conviction to be a second degree
burglary; (6) statements made in the probation report by the sentencing judge which
made clear the crime involved the burglary of a residence; and, (7) a section 969b packet.
                                      DISCUSSION
I.     Defendant’s 1983 Burglary Conviction
       The parties do not dispute that whether a prior felony qualifies as a serious felony
depends not on the specific criminal offense committed, but on the criminal conduct
underlying the offense. (People v. Garrett (2001) 92 Cal.App.4th 1417, 1421; People v.



                                             7.
Cruz (1996) 13 Cal.4th 764.) The only issue here is whether the trial court exceeded the
scope of its authority in making the determination defendant’s prior conviction was a
serious felony.
       Defendant contends the trial court was precluded from reviewing his record of
conviction to determine whether his 1983 burglary conviction was a serious felony within
the meaning of section 667, subdivision (a)(1). He asserts the Sixth Amendment required
a jury to make a factual finding as to whether his prior conviction involved a burglary of
a residence. The People assert defendant waived his right to a jury trial on the matter. In
any event, they contend the trial court was permitted to review the record of conviction to
determine whether defendant’s 1983 conviction was a serious felony because the trial
court was not deciding a disputed fact.
       We conclude defendant has forfeited the issue on appeal based on his express
waiver of a jury trial on the issue.
       A.     Trial Court’s Power to Find Sentence Enhancements
              Apprendi/Blakely
       In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States
Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” In Blakely v. Washington (2004) 542 U.S.
296, 303 (Blakely), the court clarified “the ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Thus, when a sentencing court’s authority to
impose an enhanced sentence depends upon additional factual findings not previously
made by the jury or admitted by the defendant, the defendant has the right to a jury trial
and proof beyond a reasonable doubt on the additional facts. (Id. at p. 304.)




                                             8.
       B.     Forfeiture
       Defendant contends the trial court violated his Sixth Amendment right to a jury
trial when it made the factual finding that his prior conviction involved the burglary of an
occupied residence. He concedes his trial counsel failed to raise a claim of error pursuant
to Apprendi, supra, 530 U.S. 466, but asserts the issue has not been forfeited. He
specifically argues the following:

       “[Defendant’s] claim is not forfeited on appeal because defense counsel did
       not raise a claim of Apprendi error … in the trial court. Counsel fully
       challenged the sufficiency of proof that his prior second degree burglary
       conviction amounted to a serious felony by denying the allegation,
       objecting to any potential finding that the 1983 conviction constituted a
       strike prior, and obtaining a trial as to the truth of the allegation.
       [Citations.] By challenging the legal sufficiency of proof that the prior
       second degree burglary conviction constituted both a strike and the basis of
       a prior serious felony enhancement, counsel did all that was necessary to
       support any legal argument directed toward the sufficiency of such proof.
       (See, e.g., People v. Wilson (2013) 219 Cal.App.4th 500, 516-517.)”
       Defendant’s argument misses the mark. The issue is not whether an Apprendi
objection was lodged below, because we would review defendant’s claim even in the
absence of an objection. The fact is defendant knowingly and intelligently waived his
right to a jury trial on the issue of whether his 1983 burglary conviction qualifies as a
serious felony, as well as the factual determination of whether his prior conviction
involved the burglary of an occupied residence. The record reflects the following
colloquy occurred between the parties below:

              “[PROSECUTOR]: To clarify, your Honor, counsel’s not admitting
       the five-year prior for the May 25th, 1983 residential burglary conviction.
       [¶] … [¶]

             “THE COURT: So what about the alleged five-year prior from the
       1983 conviction, would you want to present evidence on that?

               “[PROSECUTOR]: I will, your Honor, if the court—would this be a
       court trial?

              “[DEFENSE COUNSEL]: Court trial.

                                              9.
       “THE DEFENDANT: Yeah, court trial’s fine. It shouldn’t take long. I
already know the facts in that case, so just reverse on the—it’s a second
degree. It’s in the archives in the file for case number— [¶] … [¶]

        “[PROSECUTOR]: Your Honor, as to the 1983 conviction, if
[defendant’s] willing to waive the jury and then we can discuss potential
court trial versus admission versus what we see in the court file that the
court would be requesting, could we take that waiver at this time as well?
[¶] … [¶]

        “THE COURT: [Defendant], you have the right to a jury trial or a
court trial concerning the allegations in the First Amended Information that
you suffered these prior convictions. [¶] Do you understand that, sir?

       “THE DEFENDANT: Yes, sir.

        “THE COURT: And do you understand the difference between a court
trial and a jury trial?

       “THE DEFENDANT: Yes, sir. [¶] … [¶]

       “THE COURT: Okay. Now, what about the 1983 conviction that’s
alleged? Now, I understand that that is something you want to contest, but
the question is whether you want to contest it in front of the court or in
front of the jury.

        “THE DEFENDANT: I’d rather just have you hear it. It’s a rather
brief simple matter once you have the court file.

       “THE COURT: So you wish to have a court trial; is that correct?

       “THE DEFENDANT: Yes, sir.

       “THE COURT: All right. As to each of these prior convictions you
have the same constitutional rights, that includes the right to a speedy,
public jury or court trial, the right to be confronted by the witnesses against
you, the right to not incriminate yourself, and the right to present evidence
in your own defense. [¶] Do you understand that?

       “THE DEFENDANT: Yes, sir. [¶] … [¶]

       “[DEFENSE COUNSEL]: Your Honor, I had a clarification for the
court just to make sure. With regard to [defendant’s] prior record we did
discuss this in motions in limine, and I believe that the court did state that
[defendant] could be confronted with both of his prior alleged felony past


                                      10.
       convictions. In light of the fact that he is disputing the 1983 conviction,
       can we sanitize that and ask that he only be questioned with regard to one
       felony conviction?

              “THE COURT: That wouldn’t be a sanitization. That would be the
       court not allowing that and I don’t—I hear that [defendant] is disputing
       whether it’s a residential burglary. I don’t believe he’s disputing the
       conviction itself. It’s the nature of the conviction.

              “[DEFENSE COUNSEL]:· Okay.· Yes.”
       When defendant was subsequently cross-examined, the prosecutor asked him
whether he had been previously convicted of a theft-related felony offense in 1983, he
confirmed he had been. Thus, the record shows defendant was disputing whether his
prior conviction qualified as a serious felony, and that he waived his right to a jury trial
on the issue of whether his prior conviction involved a residential burglary. (Shepard v.
United States (2005) 544 U.S. 13, 26, fn. 5 [a defendant “can waive the right to have a
jury decide questions about his prior convictions”].) Defendant does not assert his waiver
was unknowing or unintelligent, nor does it appear his waiver was defective based on our
review of the record. We also observe defendant was not deprived of notice, since the
information in the current case alleged a section 667, subdivision (a), five-year sentence
enhancement predicated on the serious felony status of the prior conviction. Thus, we
conclude defendant expressly waived his right to a jury trial and he may not be heard to
complain that his right to a jury trial was violated.
       To the extent defendant challenges the sufficiency of the evidence supporting the
trial court’s decision, we conclude substantial evidence supports the decision. The initial
abstract of judgment reflected the prior conviction was originally a burglary in the first
degree, which, based on the elements of the offense, would necessarily include the
finding the burglary was one of an inhabited structure; the information filed charged
defendant with the October 31, 1982, entry of an occupied residence with the intent to
commit larceny; the probation report characterized the burglary as a residential burglary;
the preliminary hearing transcript made clear the burglary involved an occupied

                                              11.
residence; and this court’s appellate opinion stated defendant’s prior conviction was only
reduced to a second degree burglary because the jury was improperly instructed under the
1983 burglary law, as opposed to the law in 1982, when defendant committed the crime.
Given this strong evidence, we conclude substantial evidence supported the trial court’s
finding defendant’s prior conviction qualified as a serious felony.
II.    The Prior Acts Were Admissible
       Defendant also contends the trial court erred in admitting evidence of two prior
uncharged acts: a 2004 incident where he shattered the car window of his ex-wife, and a
2007 conviction for making criminal threats against Byrns. The People disagree, as do
we.
       A.     General Legal Principles
       Under Evidence Code section 1101, subdivision (b), evidence of a crime or prior
act is admissible when offered to prove motive, opportunity, preparation, plan,
knowledge, intent, identity, absence of mistake, or lack of accident. Admissibility under
Evidence Code section 1101, subdivision (b) depends on (1) the materiality of the facts
sought to be proved, (2) the tendency of the uncharged acts to prove those facts, and (3)
the existence of any rule or policy requiring exclusion of the evidence. (People v.
Lindberg (2008) 45 Cal.4th 1, 22.)
       Although evidence under Evidence Code section 1101 is inadmissible to show the
defendant’s propensity to commit crimes, under Evidence Code section 1109, evidence of
uncharged and charged acts of domestic violence are admissible to show a propensity to
commit such acts. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.) Acts of
domestic violence are defined, in part, by section 13700 and include abuse committed
against an individual “with whom the suspect … has had a dating or engagement
relationship.” (§ 13700, subd. (b).) Such abuse may involve “placing another person in




                                            12.
reasonable apprehension of imminent serious bodily injury to himself or herself, or
another.” (Id., at subd. (a).)
       Evidence admitted under Evidence Code sections 1101 and 1109 is subject to the
Evidence Code section 352 balancing test. Under Evidence Code section 352, the court
“may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
A trial court’s exercise of its discretion in deciding whether to admit evidence offered
under Evidence Code sections 1101 and 1109 is reviewed for abuse of discretion. The
trial court’s decision will be reversed only if its ruling was “‘arbitrary, whimsical, or
capricious as a matter of law.’” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
       B.     Window-shattering Incident
              1.      Procedural Background
       Prior to trial, the prosecutor moved to admit evidence of two acts, including an
uncharged act in which defendant threw an object at the truck of his now ex-wife,
breaking her driver-side window. The prosecutor sought admission of the prior acts
pursuant to Evidence Code sections 1101 and 1109. She argued the window-shattering
incident was similar to the charged offense, and the probative value of this evidence was
not substantially outweighed by its prejudicial effect. The prosecutor explained the
evidence would be relevant to prove motive, lack of mistake, and intent. Further, it
would show defendant is someone who gets upset when he cannot control a situation.
The prosecutor asserted the evidence directly contradicted defendant’s claim that
breaking Byrns’ window was an accident.
       Defendant’s trial counsel argued the evidence was inadmissible because the
incident was unduly prejudicial and occurred too remote in time to be relevant to the




                                             13.
charged offenses. The 2004 incident occurred ten years and two months prior to the
charged offenses.
       The trial court held the evidence was admissible under Evidence Code section
1101, subdivision (b). The court reasoned the incident was relevant to show lack of
accident, stating: “[I]t appears to the Court … [if] the same accident allegedly happened
twice, it probably isn’t an accident.” The court also noted the prosecutor would be
prohibited from using the incident to argue propensity, an issue to be addressed in the
jury instructions.
              2.     Analysis
       We conclude the trial court did not abuse its discretion in admitting evidence of
the 2004 uncharged window-shattering incident. Evidence of the prior act was highly
probative under Evidence Code section 1101, subdivision (b) in showing defendant’s
charged act of shattering Byrns’ window was not an accident. The jury was instructed
that vandalism under section 594 requires the People to prove the defendant (1)
“maliciously damaged personal property” and (2) “the defendant did not own the
property.” A defendant acts maliciously where he or she intentionally commits a
wrongful act, or acts with the unlawful intent to injure or annoy someone else.
(CALCRIM No. 2900.) “[W]hen a defendant admits committing an act but denies the
necessary intent for the charged crime because of mistake or accident, other-crimes
evidence is admissible to show absence of accident.” (People v. Whisenhunt (2008) 44
Cal.4th 174, 204.) Thus, whether defendant’s act of shattering Byrns’ window was
intentional was a disputed issue at trial, and the prior uncharged act was properly
admitted to show the charged offense was not an accident.
       Evidence of the prior act was also relevant to defendant’s credibility. Defendant
testified the brick slipped from his hand accidentally. However, given the similarities
between the prior uncharged incident and the charged offense, the jury could discredit



                                            14.
defendant’s testimony and reasonably infer he intentionally threw the brick. Although
the prior act occurred ten years and two months in time before the current charged
offense, the record demonstrates the trial court considered the temporal proximity
between the charged and uncharged acts and concluded the incident was relevant. We
agree with the trial court’s determination and note that only under Evidence Code section
1109 are acts occurring more than 10 years prior to the charged offense presumptively
inadmissible. (Evid. Code, § 1109, subd. (e).)
       We also reject defendant’s contention this evidence was disproportionately
inflammatory compared to the charged offense. The jury heard limited testimony as to
the 2004 incident, and unlike the charged incident, there was no indication by Cheryl
Wells that defendant grabbed, struck, or cursed at her. Moreover, in closing instructions,
the trial court instructed the jury to consider evidence of the prior incident only for the
limited purpose of deciding whether defendant’s alleged actions were the result of
mistake or accident. The jury was expressly admonished it was not to conclude
defendant was a person of bad character or that he had a criminal disposition. We
presume jurors are intelligent people, capable of understanding the instruction and
applying it to the facts of this case. (People v. Tatman (1993) 20 Cal.App.4th 1, 11.)
Thus, we conclude the trial court did not abuse its discretion in admitting evidence of the
window-shattering incident.
III.   2007 Criminal Threats Incident
       A.     Procedural Background
       The prosecutor moved under Evidence Code section 1109 to admit evidence of
defendant’s 2007 conviction for making criminal threats. She argued the prior crime and
current offense involved the same victim, the prior crime was probative of Byrns’ fearful
state of mind, and it explained her actions in attempting to flee from defendant during the
commission of the current offense. Defendant’s trial counsel argued defendant’s prior



                                             15.
conviction should be barred under Evidence Code section 352 because defendant was not
convicted of an act involving physical violence against Byrns.
       The trial court held the evidence was admissible under Evidence Code section
1109. The court also noted the prior act occurred within the 10-year presumption under
section Evidence Code section 1109, subdivision (e), which provides: “Evidence of acts
occurring more than 10 years before the charged offense is inadmissible under this
section, unless the court determines that the admission of this evidence is in the interest
of justice.”
       Defense counsel later argued the trial court should bar admission of the specific
statements made by defendant because they were highly prejudicial, the prior act had
occurred seven years prior to the charged offense, and could indicate to the jury that
“[defendant] has continually abused … Byrns for seven years, instead of looking at these
facts in somewhat of an isolated scenario.”
       The trial court admitted the statements, reasoning there was no indication they fell
outside the definition of domestic violence under section 13700. The court explained the
statements were probative because they involved the same victim, and it further found
defendant’s mere words would not be so prejudicial as to cause the jury to render a
verdict based on emotion.
       The specific statements admitted were three messages left by defendant for Byrns.
First, defendant stated, “‘You’re going to be missing a family member, bitch.’” Second,
defendant stated, “‘I’ll be over soon enough. It is about to start. Oh, yeah, it started.’”
Finally, defendant left a message threatening, “‘Get ready, I’m coming over. Call the
cops or do what you got to do, but you’ll feel it, oh, I guarantee it.’”
       B.      Analysis
       Defendant asserts the following: “The 2007 incident lacked probative value
because [defendant] was convicted of criminal threats in that case, whereas here, he was



                                              16.
charged with inflicting corporal injury and assault with a deadly weapon, not criminal
threats.” Defendant’s claim is without merit.
       The fact defendant had made criminal threats to the same victim on a prior
occasion tends to show defendant was predisposed or inclined to commit acts of domestic
violence, and it was relevant to show he acted with the intent to inflict injury on Byrns
during the commission of the charged offenses. Under Evidence Code section 1109,
prior threats and acts of violence against a victim are admissible to prove motive in a
subsequent prosecution where the defendant is accused of inflicting violence or
threatening violence against the same victim. (People v. Fruits (2016) 247 Cal.App.4th
188, 204.) Here, whether defendant willfully inflicted physical injury on someone with
whom he had or previously had a dating relationship with was an element of the inflicting
corporal injury charge against him. (§ 273.5, subd. (a).) Thus, the prior act was relevant.
       Contrary to defendant’s assertion, the prior act and the current act do not have to
be based on the same offense. It is defendant’s propensity to commit violent acts that
makes the prior act relevant to the charged offense under Evidence Code section 1109.
We also observe this evidence was admissible under Evidence Code section 1101,
subdivision (b) because it was relevant to show defendant’s motive in committing the
charged crimes, his particular intent to commit the charged crimes, and because the
evidence demonstrated the absence of any mistake or accident.
       Moreover, the probative value of defendant’s prior statements was not
substantially outweighed by the danger of undue prejudice. While the messages were
undoubtedly disturbing to Byrns, we disagree with defendant’s assertion the messages
were so disturbing they would inflame the emotions of the jury. We, therefore, conclude
the trial court did not abuse its discretion in admitting evidence of defendant’s 2007
criminal threats conviction.




                                            17.
IV.    Proposition 47 Does Not Alter Defendant’s Prior Prison Term Enhancements
       In a supplemental brief, defendant asserts his sentence is unauthorized based on
the fact one of the prior convictions used to enhance his current sentence has
subsequently been reduced to a misdemeanor pursuant to Proposition 47 (the Safe
Neighborhoods and Schools Act or the Act).
       In 2005, defendant was convicted of unauthorized possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), then a felony. In October 2014, one
month before the passage of Proposition 47, defendant was sentenced in the instant case.
His 2005 conviction was used to enhance his current sentence as a prior prison term
(§ 667.5, subd. (b)). In June 2015, the trial court granted defendant’s petition to reduce
his prior felony conviction to a misdemeanor under Proposition 47 (§ 1170.18).
Defendant contends the prior prison term enhancement based on this conviction must
now be stricken as a result. The People disagree, as do we.
       Defendant contends People v. Flores (1979) 92 Cal.App.3d 461 (Flores) is
instructive. Flores was convicted in 1966 for possession of marijuana, for which he
served a prison term. (Id. at p. 470.) In 1977, he was convicted of selling heroin. (Id. at
pp. 464-466.) His sentence for selling heroin was enhanced by one year under section
667.5, based on his 1966 conviction. (Flores, at p. 470.)
       Flores sought to overturn his 1966 conviction on the basis of subsequent
legislation reducing the penalty for marijuana possession and mandating the destruction
of records of arrests and convictions pertaining to marijuana possession crimes. (Flores,
supra, 92 Cal.App.3d at pp. 471-472.) The appellate court held Flores was entitled to the
relief he sought because the Legislature’s destruction-of-records mandate evinced a clear
intent to prevent those records from being used to enhance future sentences. (Id. at pp.
472-473.)
       Unlike the mandate in Flores, neither the plain language of Proposition 47 nor the
ballot materials shows a clear intent by the voters that Proposition 47 applies


                                            18.
retroactively to alter sentence enhancements. Nonetheless, defendant advances several
arguments in support of his assertion the Act has a retroactive effect.
       First, citing to general objectives behind Proposition 47, defendant contends the
proponents of the Act wanted its reach to be as extensive as possible. Ballot materials
suggest the passage of Proposition 47 would ensure prisons would house only violent and
serious offenders, rather than those who commit low-level crimes, such as drug
possession and petty theft. (Official Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
argument in favor of Prop. 47, p. 38.)
       While neither Proposition 47 nor the Act’s ballot materials addresses section 667.5
or recidivist enhancements generally, the materials indicate voters were assured that if the
initiative was passed, dangerous criminals would remain locked up and there would be no
automatic release of criminals. (Voter Information Guide, Gen. Elec., supra, text of
Proposition 47, § 3, subds. (4), (5), p. 70); id., rebuttal to argument against Proposition
47, p. 39.) Section 667.5 is a recidivist enhancement, intended to punish hardened
criminals who are undeterred by the fear of prison. (In re Preston (2009) 176
Cal.App.4th 1109, 1115.) Because a person who refuses to reform even after serving
time in prison is clearly more dangerous than someone who merely possesses drugs for
personal use or shoplifts, we are not persuaded the voters intended Proposition 47 to
necessarily alter prior prison term enhancements.
       Second, defendant argues Proposition 47 clearly envisioned retroactive relief for
those who qualified. He cites to subdivisions (f) and (g) of section 1170.18. Subdivision
(f) permits an inmate currently serving a sentence for a Proposition 47 reducible felony to
petition the superior court for recall of his or her sentence. (§ 1170.18, subd. (f).)
Subdivision (g) states: “[i]f the application satisfies the criteria in subdivision (f), the
court shall designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd.
(g).) However, nothing within the plain language of these subdivisions nor the statutory



                                              19.
scheme of which they are a part indicates a prior prison term enhancement may be
stricken as a result of a felony conviction subsequently reduced by the Act.
       According to defendant, because a prior offense is reduced to a misdemeanor
under the Act “for all purposes,” a prior prison term enhancement must be eliminated
because there is no longer a felony underlying the enhancement. Defendant cites to
People v. Park (2013) 56 Cal.4th 782 (Park) which held, “when a wobbler has been
reduced to a misdemeanor, … the prior conviction does not constitute a prior felony
conviction within the meaning of section 667(a).”
       Defendant’s reliance on Park is misplaced. In Park, the trial court reduced the
defendant’s prior felony conviction to a misdemeanor, and then dismissed the conviction.
(Park, supra, 56 Cal.4th at p. 787.) The defendant’s prior conviction was reduced to a
misdemeanor under section 17, subdivision (b)(3), which provides, “When a crime is
punishable, in the discretion of the court, either by imprisonment in the state prison or
imprisonment in a county jail …, it is a misdemeanor for all purposes … [¶] …
[¶] [w]hen the court grants probation to a defendant without imposition of sentence and at
the time of granting probation … declares the offense to be a misdemeanor.” Our
Supreme Court held the conviction no longer qualified as a prior serious felony within the
meaning of section 667, subdivision (a), and could not be used to enhance the defendant’s
sentence for crimes he subsequently committed. (Park, at p. 787.) Critically, however,
the trial court’s reduction and dismissal of the prior felony conviction occurred before the
defendant was sentenced for any new crimes.
       Here, defendant’s sentence had already been enhanced based on his prior offenses.
The Park court considered this scenario and stated, “There is no dispute that … defendant
would be subject to the section 667(a) enhancement had he committed and been
convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor.” (Park, supra, at 56 Cal.4th p. 802.)



                                             20.
       Defendant contends Park is distinguishable because section 17, subdivision (b) is
discretionary in nature, whereas resentencing under section 1170.18, subdivision (f) is
mandatory for those who qualify. We fail to see why this distinction is relevant. The
effect of a trial court declaring an offense to be a misdemeanor—whether it was required
to do so or whether it exercised its discretion in so doing—is what is relevant for
purposes of our analysis.
       The commission of a wobbler is a felony at the time the offense is committed, and
remains a felony until the crime is characterized as a misdemeanor, or the perpetrator is
convicted and sentenced to something less than incarceration in state prison. (People v.
Moomey (2011) 194 Cal.App.4th 850, 857.) Under section 17, subdivision (b), when the
court exercises its discretion to sentence a wobbler as a misdemeanor, “it is [then
considered] a misdemeanor for all purposes.” However, the “misdemean[or] status [is]
not … given retroactive effect.” (Moomey, at p. 857.) So, while an offense may be a
misdemeanor “for all purposes,” it is not a misdemeanor “for all times.” The trial court’s
declaration that a wobbler is a misdemeanor simply makes the offense a misdemeanor
from that point on.
       Section 1170.18, subdivision (k) provides the following, in pertinent part: “Any
felony conviction that is … designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes ….” The phrase “for all purposes” is identical
to language in section 17, subdivision (b). “When legislation has been judicially
construed and a subsequent statute on a similar subject uses identical or substantially
similar language, the usual presumption is that the Legislature [or the voters] intended the
same construction, unless a contrary intent clearly appears.” (People v. Rivera (2015)
233 Cal.App.4th 1085, 1100.) However, nothing in the plain language of section 1170.18
or the ballot materials reflects a contrary intent. (Rivera, at p. 1100.) Plainly stated,
nothing indicates the voters intended a conviction reduced to a misdemeanor under the
Act to be considered a misdemeanor “for all times.”

                                             21.
       Based on the language of section 1170.18 and the voter’s intent in passing the
initiative, we conclude Proposition 47 does not apply retroactively to alter sentence
enhancements. As a result, we reject defendant’s claim he is entitled to have his prior
prison term enhancement stricken.3
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 __________________________
LEVY, Acting P.J.


 __________________________
DETJEN, J.




       3We note   the issue is currently pending review in the California Supreme Court. (See
People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; People v.
Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Williams
(2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539.)


                                             22.
