IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 10, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANTHONY FRAVESI, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F02435)
The opinion of the court was delivered by: Mauro , J.
P. v. Fravesi
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Anthony Fravesi asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Our review indicates that defendant is entitled to additional presentence credit, but we find no other arguable error that would result in a disposition more favorable to him. We will modify the judgment.
Sherry Chapman was a neighbor of defendant's and Melody Welter's. Chapman was home doing laundry when she heard defendant and Welter arguing loudly. From her front yard, Chapman saw defendant behind Welter with his arm around her neck, choking her. Welter was screaming for him to stop and yelling for help.
Chapman called 911 and saw defendant push Welter into the house through the front door.
Deputy Sheriff Evelyn Madriago and another deputy responded to the 911 call. Madriago saw the blinds shaking and heard Welter crying inside the house. The deputies knocked several times, but no one answered. Madriago went to the back of the house. Through a bathroom window she heard Welter crying and also heard defendant, in a stern voice, telling Welter to get in the shower.
After other officers arrived, the officers resumed knocking on the front door. Defendant eventually answered and he was placed in a patrol car. Madriago, accompanied by another female officer, went inside to get Welter. Welter had a small cut on the bridge of her nose and redness on both sides of her neck.
Welter told the deputies that defendant did not hit her, but they had argued. Welter said that when the deputies knocked on the door, defendant told her to get in the shower and wash her face.
Chapman said that approximately two hours after the 911 call, Welter came over and apologized for defendant's behavior. Welter had a "cut on her nose[,] [h]er arm was red and sore, and her front teeth were loose and bloody." Welter told Chapman that when she and defendant went back to the house, he continued to hit her. He then "threw her into the shower to get the blood off of her."
Welter testified, however, that defendant did not hit her and did not tell her to take a shower. She said she did not have any injuries or bruises.
Defendant also testified. He admitted having an argument with Welter but he denied hitting, choking or physically abusing her.
A jury convicted defendant of felony false imprisonment. (Pen. Code, § 236.) The jury hung on a charge of cohabitant abuse (Pen. Code, § 273.5, subd. (a)) and that charge was dismissed.*fn1 The trial court suspended imposition of sentence and placed defendant on probation for three years under various terms and conditions, including 80 days in jail. The trial court awarded defendant 55 days of presentence custody credit, consisting of 37 actual days and 18 conduct days.
Appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting various claims. We address each in turn.
Defendant claims he received ineffective assistance of counsel because he had a "series of attorneys, with no collaboration between them, and none of which could be held accountable for any pre-trial hearings, or bear any responsibility for legal rights previously forfeited [sic]."
To establish ineffective assistance of counsel, defendant must show a deficiency in counsel's performance and resulting prejudice. We need not determine whether there was deficient performance if defendant fails to establish prejudice. (In re Alvernaz (1992) 2 Cal.4th 924, 945.) Defendant does not identify any prejudice, and our review of the record discloses no basis for a finding of prejudice. Defendant's claim of ineffective assistance of counsel lacks merit.
Defendant points to two instances of alleged juror misconduct. One occurred in the trial court hallway when some jurors were overheard discussing what would happen if the jury hung on a count. The other occurred during jury deliberations when a juror complained that other jurors were pressuring her to alter her position. Defendant argues that such misconduct casts doubt on the "integrity of [the] jury."
Juror misconduct raises a presumption of prejudice, but such prejudice "'"may be rebutted . . . by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm." [Citations.]'" (People v. Lewis (2009) 46 Cal.4th 1255, 1309.) We conclude there was no actual harm in this case.
Regarding the hallway incident, some of the jurors admitted they had discussed what would happen if the jury hung. This occurred even though the trial court had instructed the jury, pursuant to CALCRIM No. 101, that they were not to discuss the case until all of the evidence was presented and they were all together in the jury room. Thus, the jurors did not follow instructions. (See People v. Polk (2010) 190 Cal.App.4th 1183, 1201 ["To preserve [juror] impartiality, jurors are prohibited from discussing the case, even among themselves, until all evidence has been presented and the jury has retired to deliberate"]; Pen. Code, § 1122, subd. (b).)
Nevertheless, the presumption of prejudice arising from the juror misconduct is rebutted. The trial court obtained each juror's assurance that they understood they were not to discuss the case outside of deliberations. And the trial court directed the entire jury panel that they were not to consider the consequences of a hung jury. The jury apparently followed these instructions because it hung on the charge of cohabitant abuse.
Turning to the incident involving alleged juror pressure, that allegation related only to the charge of cohabitant abuse. The trial court examined the jurors involved in the incident and re-admonished the entire jury regarding their duties during deliberations. But again, there was clearly no prejudice because the jury hung on that count and it was dismissed.
Defendant further contends the trial court showed favoritism to the prosecution when it permitted the prosecutor to ask leading questions during the direct examination of Welter but "denied" that same right to defendant during the cross-examination of Welter.
The trial court determined that Welter, who was still living with defendant, was biased toward defendant. The trial court permitted the prosecution to ask leading questions of this hostile witness, a decision that was within the trial court's discretion. (People v. Spain (1984) 154 Cal.App.3d 845, 853.)
Contrary to defendant's assertion, however, the trial court did not prevent the defense from asking leading questions during cross-examination of Welter. Instead, the trial court rejected the prosecutor's request for such a prohibition, stating that it would not restrict the defense cross-examination. The claimed error did not occur.
Defendant also claims the trial court wrongfully kept him from impeaching Chapman with Chapman's written statement that she had been the victim of domestic violence. But the trial court did no such thing. Instead, the trial court overruled the prosecutor's objection to defendant's use of the statement for Chapman's impeachment.
Defendant complains the trial court erred in granting the People's motion to introduce the 911 recording. The issue is not reviewable, however, because there was no objection in the trial court to admission of the 911 call. (People v. Rogers (1978) 21 Cal.3d 542, 548 ["[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"]; Evid. Code, § 353 [judgment shall not be reversed absent timely objection in trial court].)
Defendant next cites instances of Chapman's alleged inconsistent testimony. For example, defendant contends it was inconsistent for Chapman to testify that defendant choked Welter with great force, but that Chapman also heard Welter screaming.
Resolution of inconsistencies in witness testimony is the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Here, it was for the jury to determine whether there were any inconsistencies in the testimony and to resolve any such inconsistencies. Viewing the evidence in the light most favorable to the judgment, we conclude there was sufficient evidence to support the verdict.
The prosecution offered, and the trial court admitted, photographs of Welter showing her physical injuries. Defendant claims he has "two degrees . . . in media production" and argues that enlargement of the photographs distorted the injuries. Defendant contends that when enlarged, the scratch on Welter's nose looked like a cut, a dime used for size comparison looked like a quarter, and Welter's face looked swollen, "almost as if she had been beaten."
Defendant did not object to the photographs in the trial court, however, and the issue is forfeited. (People v. Cowan (2010) 50 Cal.4th 401, 477).
Defendant contends the trial court imposed probationary terms and conditions that lack evidentiary support. But defendant did not object to the terms and conditions of probation. "[C]complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.)
Although we reject the contentions raised in defendant's supplemental brief, our review of the record indicates that defendant is entitled to additional presentence credit.
The trial court awarded defendant 55 days of presentence custody credit, consisting of 37 days of actual credit and 18 days of conduct credit. Pursuant to this court's miscellaneous order No. 2010-002, we deem defendant to have raised whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credit. We conclude the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [similar].)
Under the circumstances, defendant is entitled to 18 additional days of conduct credit.*fn2
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to award defendant 18 additional days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to amend its records to reflect this modification and to forward certified copies of the amended records to defendant and the Sacramento County Probation Department.
We concur: RAYE , P. J. ROBIE , J.