THE PEOPLE v. ENRIQUE MENA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE MENA, Defendant and Appellant.

B219851

Decided: March 30, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Blyth J. Leszkay and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Enrique Mena appeals from the judgment entered after a jury convicted him of a single count of continuous sexual abuse (Pen.Code, § 288.5, subd. (a)).1  The court sentenced Mena to a 16–year upper prison term.   The court ordered him to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), imposed but stayed a $1,000 parole revocation fine (§ 1202.45), and awarded him 778 days of precommitment credit.

Mena contends the trial court erred prejudicially in admitting a photograph of the victim when she was about seven or eight years old.   He also contends, and respondent concedes, the $1,000 parole revocation fine must be stricken as barred by the ex post facto clause of the federal and state Constitutions.   And he contends the abstract of judgment must be corrected to reflect:  (1) he was convicted by jury not by plea;  and (2) his precommitment credit was calculated under former section 4019, and he is thus not subject to the 15 percent credit limit under section 2933.1, which was not in effect at the time of his offense.   Respondent does not contest Mena's requested amendments of the abstract of judgment but contends the abstract must be amended further to reflect Mena is entitled to a total of 777 days of precommitment credit rather than the 778 days awarded by the trial court and the 887 days reflected in the abstract of judgment.

Based on our review of the record and applicable law, we modify the judgment by striking the parole revocation fine and correcting the precommitment credit award to reflect a total of 777 days, and, as so modified, we affirm the judgment.   We direct the trial court to prepare an amended abstract of judgment to reflect these modifications;  Mena's credits were calculated under former section 4019;  and Mena was convicted by jury, not plea.   Reversal of the judgment is not required, because admission of the photograph was harmless.

BACKGROUND 2

Cristina was born in May 1985, and at the time of trial was 24 years old.

From 1990 to 1992, she resided with her sister Jessica, who is about three years younger, their mother (Mother), and Mena, Mother's boyfriend, in a one-bedroom apartment.   Between September 1, 1990, when Cristina was five years old, and November 10, 1992, Mena sexually abused her, including touching her breasts, digitally penetrating her vagina, and penetrating her vagina with his penis.

DISCUSSION

1. Admission of Photograph Harmless

Mena contends the trial court abused its discretion in admitting a photograph of Cristina when she was seven or eight years old, because it was highly inflammatory in that it appealed to the passions of the jury.   We find its admission is harmless.

Outside the presence of the jury during a break in Cristina's testimony, the prosecutor announced her intention to introduce a photograph of Cristina taken “somewhere around” 1990 or 1992.   The following colloquy transpired between defense counsel and the trial court:

Defense counsel objected:  “The age of the victim in this case is not in dispute.   It's not at issue.   The injuries on the victim are not in issue․  My concern is that this photograph that I'm holding, which appears to show a young little girl with a missing tooth, obviously she's very innocent looking, she's got earrings, a white dress with a white – appears to be some head piece, it looks like something out of a church ceremony, with pearls hanging down.   It's going to appeal to nothing but the passions of the jury.   I'm concerned that this photograph, which has no evidentiary value, is going to be improperly used to appeal to the jury's passions.   In opening statement the People kept referring to [Mena] taking away her childhood.   So at this point I don't see any value or relevance to this photograph other than to appeal to the jury's passions.”

In overruling this objection, the court stated:  “Well, the court has seen the photograph and also listened to the testimony.   And the description of the hand movement down the length of the hair has been described.   Who knows exactly what she looked like at the time in 1990, 1992.   If she had very short hair still, based on the testimony showing how she moved her hands from the forehead all the way down past the shoulders down to the waist [to illustrate how Mena touched her hair], it would have been something offered for impeachment.   How could he have possibly draped his hands across her hair for that length of ․ time if in fact she had a little short haircut.

“And folks have to get some idea of what a person looked like.   As I indicated before, this is an example of the cold case circumstance that's on television, where they show the person today, then show the flashback as to what the person looked like on the date and the time.   Even though the description helps, in a certain sense also getting to know exactly what the individual looked like [on the date and time], ․ there's so many different issues, and 288 is going as to the appeal of the child, why the person would be attracted, other than the standard pedophilia explanation, that may be something there that the triers of fact have to see, have to understand.   You can't really describe yourself in words as to how you looked that would be any better than a photograph.

“But your record is made.   Over defense objection that will be admitted as a photograph.” 3

The trial court has no discretion to admit irrelevant evidence.  (People v. Hamilton (2009) 45 Cal.4th 863, 913.)   On the other hand, the court has broad discretion in determining the relevance of photographic evidence, and its “ ‘decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.  [Citation.]’ ”  (People v. Lewis (2009) 46 Cal.4th 1255, 1282.)   Broadly speaking, a photograph is more prejudicial than probative if it poses an unacceptable danger to the fairness of the trial or the reliability of its outcome.  (See, e.g., People v. Richardson (2008) 43 Cal.4th 959, 1005–1006.)   Nonetheless, the “ ‘possibility that [the photograph] generated sympathy for the victim[ ][is] not enough, by itself, to compel its exclusion’ given its relevance.”  (People v. Cowan (2010) 50 Cal.4th 401, 477 (Cowan ).)

“When conditions depicted in photographic evidence are relevant to the prosecution's case, it is ‘not obliged to prove these details solely from the testimony of live witnesses ․’․  [Citations.]”  (People v. Davis (2009) 46 Cal.4th 539, 615.)   Here, identity of the victim was not at issue, nor was the age of victim at the time of the continuous sex abuse.   Although the depiction of Cristina's hair in the photograph served to corroborate her testimony on a collateral detail, the photograph of her as a young child was no more than marginally relevant and therefore the court should have excluded it.  (People v. Kelly (1990) 51 Cal.3d 931, 963.)

Admission of the subject photograph, however, is “harmless under any standard.”  (Cowan, supra, 50 Cal.4th at p. 477;  see also People v. Jablonski (2006) 37 Cal.4th 774, 822–823 [harmless under People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18, 24].)   Considering the strong evidence of Mena's guilt, passions rather than the evidence would not have swayed the jury.   Cristina's testimony concerning Mena's sexual abuse was corroborated by the testimony of others.   There was evidence that Mena also sexually molested Jessica during the same period.   Uncontroverted objective evidence also supported Cristina's testimony that she was molested.   Based on his medical examination performed in November 1992, Dr. Elliot Schulman, a child sexual abuse expert, opined that Cristina had suffered blunt force vaginal trauma consistent with her reported sexual abuse.   Although it is theoretically possible that Cristina could have sustained this injury by other means, both Cristina and Jessica testified to sexual abuse by Mena, the evidence showed that Mena had unrestricted access to Cristina and no other explanation for her injury was suggested by the evidence.   Moreover, the jury was entitled to infer consciousness of guilt from the evidence that, after the sexual abuse was reported to police, Mena fled with the $25,000 he and Mother had saved and remained a fugitive until his extradition in 2008 from Mexico.   (See, e.g., People v. Navarette (2003) 30 Cal.4th 458, 502;  People v. Mendoza (2000) 24 Cal.4th 130, 179–180.)

2. Striking of Parole Revocation Fine Mandated

At sentencing, the trial court imposed a $1,000 parole revocation fine (§ 1202.45), which was stayed pending successful completion of parole.   Mena contends, and respondent concedes, the court erred.   We agree.

The information alleged Mena committed the continuous sexual abuse during the time frame of September 1, 1990 to November 10, 1992.   The evidence presented confirmed the acts transpired between 1990 and 1992.  (See People v. Avina (1993) 14 Cal.App.4th 1303, 1308–1313 [section 288.5 punishes a continuous course of conduct rather than any of its constituent acts].)   Section 1202.45, however, did not become effective until August 3, 1995.  (Stats.1995, ch. 313, § 6, p. 1758.)   Imposition of a parole revocation fine prior to the effective date of section 1202.45 violates the ex post facto clause of the federal and state Constitutions.  (See, e.g., People v. Callejas (2000) 85 Cal.App.4th 667, 678;  U.S. Const., art.   I, § 10, cl. 1;  Cal. Const., art. 1, § 9.) The judgment therefore must be modified by striking the parole revocation fine.

3. Correction of Precommitment Credit Award Warranted

At sentencing, the trial court awarded Mena a total of 778 days of precommitment credit, consisting of 519 days of actual custody credit and 259 days of conduct credit.4  The precommitment credit award should have been 777 days.

A criminal defendant is subject to a 15 percent custody credit limit pursuant to section 2933.1.   By its terms, section 2933.1 applies only to crimes “committed on or after the date on which [it] becomes operative” (§ 2933.1, subd. (d)), which was on September 21, 1994 (Stats.1994, ch. 713, § 1, p. 3448).   As the trial court correctly noted, this limit is inapplicable to Mena, because he committed the subject crime prior to this operative date.   (People v. Camba (1996) 50 Cal.App.4th 857, 866–867.)

Mena therefore is entitled to an award of precommitment credits calculated under former section 4019, which provided that six days were deemed to have been served for every four days spent in actual custody.5  The trial court divides by four the number of actual custody days, discounting any remainder, and then multiplies this quotient by two to reach the total amount of conduct credit.  (See, e.g., People v. Kimbell (2008) 168 Cal.App.4th 904, 908–909.)   In this instance, dividing 4 into 519 days, Mena's actual custody credit, discounting the remainder, results in 129 days, which is doubled to 258 days, the correct amount of his conduct credit.   Mena's total precommitment award is 777 days, consisting of 519 days of actual custody credit plus 258 days of conduct credit, not the 778 days awarded.

4. Amended Abstract of Judgment Necessary

The abstract of judgment recites the trial court imposed a $1,000 parole revocation fine, which was stayed, and awarded Mena 887 days of precommitment credit.   These recitals must be vacated as erroneous.   We direct the trial court to prepare an amended abstract of judgment to delete the reference to the parole revocation fine and to reflect the total amount of precommitment credit awarded is 777 days.   The abstract also must be amended to reflect Mena was convicted by jury, not by plea, and to conform to the court's pronouncement at sentencing that the court would ensure “the abstract reflects that this is a sentence not ․ [under section] 2933.1” by checking the reference to section 4019 in box number 12 of the abstract of judgment.

DISPOSITION

The judgment is modified by striking the parole revocation fine and correcting the precommitment credit award to reflect a total of 777 days, and, as so modified, the judgment is affirmed.   The superior court is directed to prepare an amended abstract of judgment to reflect the judgment as modified;  that Mena was convicted after jury trial, not after plea;  that box number 12 of the abstract of judgment form is checked, and to forward a corrected copy thereof to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further section references are to the Penal Code unless otherwise indicated..  FN1. All further section references are to the Penal Code unless otherwise indicated.

FN2. A short summary suffices in view of the fact Mena does not challenge the sufficiency of the evidence to support the judgment..  FN2. A short summary suffices in view of the fact Mena does not challenge the sufficiency of the evidence to support the judgment.

FN3. When direct examination resumed, the prosecutor displayed the photograph and asked Cristina if she recognized it.   She responded, “That's me when [Mena] was doing this to me.”   She confirmed that the photograph accurately depicted how she looked in first or second grade.In closing argument, the prosecutor reminded the jury that “[a]t the beginning of this case I told you that this was a case about a stolen childhood and lost innocence.”   During rebuttal, she emphasized that point by arguing that justice has waited 17 years and “nobody can return the lost innocence of Cristina to her, or [her] stolen childhood.   We can't do that.   But your job here is to hold [Mena], finally, accountable for his actions.   And I ask you to do that by finding him guilty of the one charge in this case.”.  FN3. When direct examination resumed, the prosecutor displayed the photograph and asked Cristina if she recognized it.   She responded, “That's me when [Mena] was doing this to me.”   She confirmed that the photograph accurately depicted how she looked in first or second grade.In closing argument, the prosecutor reminded the jury that “[a]t the beginning of this case I told you that this was a case about a stolen childhood and lost innocence.”   During rebuttal, she emphasized that point by arguing that justice has waited 17 years and “nobody can return the lost innocence of Cristina to her, or [her] stolen childhood.   We can't do that.   But your job here is to hold [Mena], finally, accountable for his actions.   And I ask you to do that by finding him guilty of the one charge in this case.”

FN4. The reporter's transcript reflects Mena was awarded 519 days of actual custody and 259 days of conduct credit, or a total of 778 days of precommitment credit.   The clerk's transcript recites the total amount is 887 days, consisting of 592 days of actual custody and 295 days of conduct credit.   We deem the reporter's transcript to be the correct record.   (People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4 [if conflict in record “cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case”].).  FN4. The reporter's transcript reflects Mena was awarded 519 days of actual custody and 259 days of conduct credit, or a total of 778 days of precommitment credit.   The clerk's transcript recites the total amount is 887 days, consisting of 592 days of actual custody and 295 days of conduct credit.   We deem the reporter's transcript to be the correct record.   (People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4 [if conflict in record “cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case”].)

FN5. Section 4019 was amended effective January 25, 2010 and again effective September 28, 2010.  (Stats.2009–2010, 3rd Ex.Sess., ch.   28 (Sen. Bill No. 18), § 50, pp. 5270–5271, eff.   Jan. 25, 2010;  Stats.2010, ch.   426 (Sen. Bill No. 76), § 2, p. 2187, eff.   Sept. 28, 2010.)   Mena is not entitled to the benefit of the increased credits provided for in the January 25, 2010 amendment to section 4019, subdivision (f), because he is required to register as a sex offender. (§ 290, subd. (c);  see former § 4019, subds. (b)(2) & (f) (Stats.2009–2010, 3rd Ex.Sess. ch.   28 (Sen. Bill No. 18), § 50, pp. 5270–5271).).  FN5. Section 4019 was amended effective January 25, 2010 and again effective September 28, 2010.  (Stats.2009–2010, 3rd Ex.Sess., ch.   28 (Sen. Bill No. 18), § 50, pp. 5270–5271, eff.   Jan. 25, 2010;  Stats.2010, ch.   426 (Sen. Bill No. 76), § 2, p. 2187, eff.   Sept. 28, 2010.)   Mena is not entitled to the benefit of the increased credits provided for in the January 25, 2010 amendment to section 4019, subdivision (f), because he is required to register as a sex offender. (§ 290, subd. (c);  see former § 4019, subds. (b)(2) & (f) (Stats.2009–2010, 3rd Ex.Sess. ch.   28 (Sen. Bill No. 18), § 50, pp. 5270–5271).)

CHANEY, J. JOHNSON, J.