THE PEOPLE v. JERRY PAT SQUIRE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

On February 19, 2009, appellant, Jerry Pat Squire, was charged in an information with felony spousal abuse (Pen.Code, § 273.5, subd. (a), count one) ¹ , assault with a deadly weapon by means of force likely to cause great bodily injury (§ 245, subd. (a)(1), count two), and misdemeanor battery (§ 242).   At the conclusion of a jury trial on September 2, 2009, Squire was convicted of all three counts.   On October 5, 2009, the trial court sentenced Squire to prison for the midterm of three years on count one and to concur

 ¹ rent sentences on counts two and three of three years and 180 days respectively.   Squire was granted applicable custody credits and ordered to pay a fine of $400 pursuant to section 1203.097.

Squire contends the trial court erred in failing to grant his motion for a mistrial when an investigating officer testified that Squire invoked his right to silence during questioning.   Squire asserts this constituted error pursuant to Doyle v. Ohio (1976) 426 U.S. 610 (Doyle ).   Squire contends the trial court erred in fining him pursuant to section 1203.097 because this fine only applies to defendants placed on probation, not to those sentenced to prison.   We further address the issue of custody credits under section 4019.

Trial Evidence

In January 2009, Amanda Gayheart lived with Squire and her children.   On January 1, 2009, Ms. Gayheart went to work.   She sent a text message to Squire asking why he had not called.   Appellant sent back a text filled with profanity, stating he no longer cared about Ms. Gayheart.   When Ms. Gayheart finished her shift at 10 p.m., she drove around town looking for a home to rent so she and her children could move away from Squire.

Squire left a message on Ms. Gayheart's cell phone voicemail that if she did not arrive home in five minutes, he was taking their child, leaving her two children alone in the apartment, and calling the police to report that Ms. Gayheart had abandoned her children.   When Ms. Gayheart arrived home, Squire was gone.   They exchanged text messages indicating their relationship was over.   Ms. Gayheart left a voice message explaining things did not have to get ugly.   Ms. Gayheart would not fight custody of their child and she would help him pay the bills.

Squire returned at 11:00 p.m. Squire told Ms. Gayheart he was going to take their child out of state.   Squire explained he had taken their child's social security and insurance cards and there was nothing she could do to stop him.   Squire threatened to call Ms. Gayheart's employer to cause her to lose her job.   Ms. Gayheart told Squire that he was not taking their child.   Squire became tense, walked back into the house, and locked the door from the second floor balcony into their home.

Ms. Gayheart, who still had her cell phone, called her uncle.   When Squire saw Ms. Gayheart on the phone, he charged towards the sliding glass door to the balcony.   Squire opened the door, but blocked it with his body.   He yelled at Ms. Gayheart to “get the fuck away from me.”   Ms. Gayheart pled with Squire to let her back inside their home.   Squire demanded Ms. Gayheart move away from him or he was going to show her “what domestic violence really was.”

Ms. Gayheart bull rushed, or charged at, Squire to get back inside their residence.   Ms. Gayheart lost her balance.   Squire grabbed Ms. Gayheart by her jacket and dragged her into their bedroom.   Squire threw Ms. Gayheart on the bed and pinned her down by holding her legs and told her he was going to “beat the shit” out of her.   Squire also had his forearm across Ms. Gayheart's neck and later put his hands around her neck.   Squire began to apply pressure to her neck.

Although this pressure was painful, Ms. Gayheart could still breathe.   Ms. Gayheart was crying and she covered her face.   Squire demanded that Ms. Gayheart look at him but she refused to do so.   Squire put his face against Ms. Gayheart's face, told her she needed to get her “shit,” get the kids, and get “the fuck out of the house” because he had just taken a bottle of anxiety medication and would die in an hour.   Squire told Ms. Gayheart that if she called the authorities to revive him, he would kill her and then kill himself anyway.

Ms. Gayheart pled with Squire to leave her alone, saying she would leave.   Squire grabbed Ms. Gayheart's phone, popped off the back, took out the battery, and threw the phone at Ms. Gayheart.   Squire went into the bathroom and began running water.   Ms. Gayheart was afraid Squire would run water over the battery.   She asked Squire to give it back to her.   Squire tried to shut the bathroom door but Ms. Gayheart stood in the way.   Squire put his arm around Ms. Gayheart's neck in a headlock.

At this point, Ms. Gayheart's mother, Becky Chambers, walked into their home.   Squire yelled profane epithets at Ms. Chambers and for her “to get the fuck out of his house.”   Ms. Chambers opened some blinds and motioned for someone else to come inside.   Ms. Chambers grabbed a metal folding chair to protect herself.   Squire grabbed it from her and hit Ms. Chambers with it like a baseball bat, knocking her to the ground.   Squire straddled Ms. Chambers and began to strangle her.

Ms. Gayheart began to strike Squire on the back of his head to get him off of her mother.   Squire managed to sling Ms. Gayheart across the living room.   She crashed into the sliding glass door, hitting it with her left cheek.   Squire continued to strangle Ms. Chambers whose eyes were bulging out of her head.   Ms. Gayheart heard her father, Ross Chambers, trying to enter the locked door to their residence.   She got up and unlocked the door.

Mr. Chambers demanded Squire get off of his wife.   Squire picked up Mr. Chambers and threw him across the room.   When two of the children came into the room, Squire stopped and went back to the bedroom.   Ms. Gayheart left with her parents and children for her parents' home.   Squires followed them.   They all quickly got inside the Chambers' home and called the police.

Ms. Chambers testified that she and her husband drove over to Ms. Gayheart's residence.   When Ms. Chambers entered the residence, she heard yelling from the back bedroom and entered it.   Ms. Gayheart and Squire were struggling over Ms. Gayheart's phone.   Squire was in the master bathroom and Ms. Gayheart was standing just outside the bathroom door.   Squire told Ms. Chambers she was trespassing and demanded she leave.   Ms. Chambers went to the window and motioned for her husband.   Squire darted out of the bathroom and locked the front door.

Ms. Chambers picked up a folding metal chair to shield herself from Squire.   Squire pulled the chair away from Ms. Chambers and hit her over her head with it.   Squire hit Ms. Chambers hard enough to knock her glasses off of her face and cause her to fall against the couch.   Squire beat Ms. Chambers' head against the floor, asking her if she had had enough and then began to choke her.   She had difficulty breathing.   Ms. Chambers saw Squire throw her husband across the room.   Photographs depicting Ms. Chambers' injuries were admitted into evidence.

Mr. Chambers testified that he witnessed Squire strangling his wife and saw her eyes rolling back in her head.   Mr. Chambers explained that Squire picked him up and threw him like a rag doll.

Police Officer Gabriel Padama was dispatched to investigate a domestic disturbance.   Ms. Gayheart was crying hysterically.   She had redness on her face and neck.   Ms. Gayheart had scratches on her arms, neck, and back of her neck.   Ms. Gayheart had bruising on her arm, calves, and cheek.   Padama also documented a bump on Ms. Gayheart's head.   Photographs of Ms. Gayheart's injuries were shown to the jury.

Motion for Mistrial

During further cross-examination by defense counsel, Padama was asked if during direct examination Padama had testified that Squire had complained that his back hurt.   He replied that Squire stated that he wanted to remain silent.   The prosecutor interrupted and asked Padama to stop at that point.   The trial court excused the jury and defense counsel asserted this testimony constituted Doyle error.   Defense counsel pointed out that Padama was not responding to her question concerning pain in Squire's back, but spontaneously made the statement.   Defense counsel moved for a mistrial based on Doyle error.

The trial court stated it would advise the jury that it was not to consider Padama's statement regarding Squire's desire to remain silent and the statement was to be disregarded.   Defense counsel argued that the damage caused by the statement could not be cured with an admonition and would create additional prejudice to her client.   Defense counsel still requested a mistrial.

Relying on Greer v. Miller (1987) 483 U.S. 756 (Greer ), the trial court noted that the United States Supreme Court upheld the use of an admonition similar to that proposed by the trial court.   Defense counsel ultimately agreed to a simplified advisement for the jury to disregard Padama's statement without directly referencing her client's invocation of the right to remain silent.   When the jury returned to court, defense counsel asked the court to strike the officer's last answer to her question.   The prosecutor submitted the matter.   The trial court granted the motion and stated it was striking “the last answer of Officer Padama.”

DOYLE ERROR

Appellant argues there was Doyle error and it was not corrected by the trial court's admonition to the jury.   Respondent replies that pursuant to Greer, there was no Doyle error because the prosecutor did not solicit Officer Padama's testimony.   Alternatively, respondent argues that any Doyle error was harmless.

In Doyle, the United States Supreme Court held that a defendant may not be impeached by his silence after he has received Miranda advisements.  (Doyle, supra, 426 U.S. at pp. 618.)   In Greer, the Supreme Court explained that a Doyl e violation has two components.   The first component is that the prosecutor makes use of a defendant's post-arrest silence for impeachment purposes.   The second component is that the trial court permits that use, such as when it overrules a defense objection, thereby giving the jury the unmistakable impression that what the prosecution is doing is legitimate.   (Greer, supra, 483 U.S. at pp. 761–764.)  Doyle error is analyzed under the Chapman ² harmless error standard.  (People v. Earp (1999) 20 Cal.4th 826.)

Greer held that no Doyle violation occurs when the trial court does not permit the inquiry that Doyle forbids.  (Greer, supra, 483 U.S. at pp. 763–764.)   The problem presented in this case, however, does not involve an improper inquiry by the prosecutor.   Rather, in the instant action the officer did not answer defense counsel's question but instead stated that Squire wanted to remain silent.   Although no questioning by either attorney should have led to this answer, unlike the Greer case, the information that Squire sought to remain silent did reach the jury.   We do not reach the People's contention that this conduct falls within the holding in Greer.   Rather, we assume arguendo that there was Doyle error and proceed to analyze whether the error was prejudicial under the Chapman standard of review.

The prosecution case was very strong.   Squire's assault of Ms. Gayheart was documented not only by Ms. Gayheart and her parents, but by photographs taken of the victims' injuries at the time of the incident.   There was only one defense witness who added little additional evidence not already covered by other witnesses.³  Like the Greer case, no further questioning or argument with respect to Squire invoking his right to silence occurred.

The trial court advised the jury to disregard Padama's last answered question and ordered it stricken.   In addition, the trial court's closing instructions to the jury included the following instruction:  “If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose.”   The jury is presumed to have followed the trial court's instructions.  (People v. Alexander (2010) 49 Cal.4th 846, 921.)   Given the strength of the prosecution's case, the absence of exculpatory defense evidence, and the trial court's admonitions to disregard Officer Padama's testimony concerning Squire's invocation of his right to silence, we conclude that any Doyle error here was harmless beyond a reasonable doubt and that the jury's verdict would be no different in the absence of this error.

PROBATION FEE

Appellant contends, and respondent concedes, that the trial court's imposition of a domestic violence fee for one placed on probation pursuant to section 1203.097 does not apply because subdivision (a) of this section expressly states that this section applies to persons “placed on probation.”   Appellant was sentenced to state prison, not placed on probation.   The fee was inappropriately applied to this case and must be stricken.

CUSTODY CREDITS

When appellant was sentenced on October 5, 2009, the court calculated appellant's conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody.  (Former § 4019.)   Appellant received 415 days of presentence custody credit, calculated as 277 actual credits and 138 conduct credits.   The Legislature, however, amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, subdivision (c) or a violent felony as defined in section 667.5, subdivision (c), may accrue additional conduct credits (see subds. (b)(1) and (c)(1) of § 4019).   From the probation report, it does not appear that appellant has been convicted of a serious or violent felony.

We find that the amendment to section 4019 applies prospectively only.⁴  Under section 3, it is presumed that a statute operates prospectively “ ‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].  [Citation.]’   [Citation.]”  (People v. Alford (2007) 42 Cal.4th 749, 753.)   The Legislature neither expressly declared, nor does it appear by “ ‘ “clear and compelling implication” ’ ” from any other factor(s), that it intended the amendment operate retroactively.  (Id. at p. 754.)   Therefore, the amendment applies prospectively only.⁵

We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively.   However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.

We also conclude that prospective-only application of the amendment does not violate appellant's equal protection rights.   One of section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct.   Appellant and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody.   The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively.

Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose.  (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)

DISPOSITION

The trial court's imposition of a domestic violence fee pursuant to section 1203.097 is stricken.   The trial court shall prepare an amended abstract of judgment reflecting this change and forward it to the proper authorities.   The judgment is, otherwise, affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Chapman v. California (1967) 386 U.S. 18 (Chapman )..  FN2. Chapman v. California (1967) 386 U.S. 18 (Chapman ).

FN3. The police dispatcher was called as a defense witness..  FN3. The police dispatcher was called as a defense witness.

FN4. We decide this case according to our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is currently before the California Supreme Court, along with its companion case, People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963..  FN4. We decide this case according to our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is currently before the California Supreme Court, along with its companion case, People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

FN5. The Legislature has again amended section 4019, this time effective September 28, 2010, and the latest amendment is expressly prospective-only.  (Stats.2010, ch. 426, § 2.) The amendment restores the earlier credit scheme..  FN5. The Legislature has again amended section 4019, this time effective September 28, 2010, and the latest amendment is expressly prospective-only.  (Stats.2010, ch. 426, § 2.) The amendment restores the earlier credit scheme.

THE COURT * FN*.  Before Wiseman, Acting P.J., Gomes, J., and Detjen, J.