Opinion
D057645 Super. Ct. No. SCS215653
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. DARRYL LEE DUNSMORE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, H. Ronald Domnitz, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded.
INTRODUCTION
A jury convicted Darryl Lee Dunsmore of one count of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664; count 1), and two counts of assault with a deadly weapon and by force likely to cause great bodily injury (§ 245, subd. (a)(1); counts 2 and 3). As to all counts, the jury found true allegations Dunsmore personally used a deadly and dangerous weapon (§ 1192.7, subd. (c)(23)). As to counts 1 and 2, the jury found true allegations Dunsmore personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to count 3, the jury found true allegations Dunsmore personally used a deadly and dangerous weapon (§ 1192.7, subd. (c)(23)). In addition, the trial court found true allegations Dunsmore had a prior prison conviction (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior strike conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)). The trial court sentenced Dunsmore to 22 years in prison.
Further statutory references are also to the Penal Code unless otherwise stated.
Dunsmore appeals, contending the trial court prejudicially erred by allowing the prosecution to present evidence of his prior acts of domestic violence and flight from police in the prosecution's rebuttal case. The People contend the trial court properly admitted the evidence. The People further contend the trial court erred by refusing to impose certain mandatory fines and fees because the trial court did not believe in doing so. We agree with the People in both respects and remand the matter to the trial court for identification and imposition of any mandatory fines, fees, surcharges, and penalty assessments. In all other respects, we affirm the judgment.
BACKGROUND
Prosecution Evidence
Dunsmore and Rose Roach have known each other for a long time and were married for a brief period in 1990. After their divorce, their relationship continued sporadically and they lived together periodically between 2002 and 2007. In 2003, Roach obtained a restraining order prohibiting Dunsmore from contacting her. That same year, Dunsmore told a police detective who was investigating a violation of the restraining order that no one could keep him away from Roach.
In July 2007 Roach obtained another restraining order against Dunsmore. He moved out of her home and into a motor home on his mother's property. Because Roach was afraid of Dunsmore, she asked Joseph Camacho to move into an extra bedroom in her home. Camacho was a friend of Dunsmore's and had been living in a trailer in front of Roach's home at Dunsmore's invitation.
Dunsmore suspected that Roach and Camacho had a romantic relationship. Roach and Camacho both told Dunsmore they were not romantically involved with one another, but Camacho could tell Dunsmore was not convinced.
According to Roach's daughter, even after Roach obtained the second restraining order, Dunsmore constantly called the house and harassed them. According to Roach, Dunsmore called her about once a week and asked her to bring things to his mother's house, which she did.
Although Dunsmore never went into Roach's house while the restraining order was in place, he often drove by. Once he drove by and threw a glass ball out of his van's window, once he drove by with a brick in his lap, and once he came by and stole Camacho's extension cord. When Camacho confronted Dunsmore about the theft and told Dunsmore to leave Roach alone, the two argued and Camacho knocked a can of tobacco out of Dunsmore's hand.
In December 2007 Dunsmore called Roach at work three times over a period of 30 minutes saying he wanted her to bring him the rest of his clothes and the bench seats for his van. He was very agitated and angry. He called her foul names and told her something bad would happen to her if she did not bring his things over. She told him she would bring his clothes over, but could not fit his bench seats in her car. She offered to put them on the street so he could come by and get them. He insisted, however, she find a way to get the bench seats to him that night.
When Roach arrived home from work later that day, her daughter, Camacho and his friend, Terry Rahn, were there. Roach told Rahn about the calls from Dunsmore. Rahn suggested she ask Camacho to talk to Dunsmore about leaving Roach alone, which she did. Camacho agreed to speak with Dunsmore and they waited for Dunsmore to call. When Dunsmore called later that evening, Roach handed the phone to Camacho. Camacho took the phone into his bedroom because it was quieter there. Roach's daughter heard Camacho arguing with Dunsmore and telling him to stop calling.
Rahn admitted he had previously been convicted of a felony in 1997.
Camacho testified Dunsmore was combative and agitated. Dunsmore yelled and screamed. He said he wanted Camacho and Rahn to bring his green suit over to his mother's house. Camacho agreed to bring Dunsmore some things and told Dunsmore he would be right over. Camacho denied getting angry or loud with Dunsmore. He said he could not settle Dunsmore down on the phone and thought he would meet Dunsmore, figure out exactly what items Dunsmore wanted from Roach's house and bring those items back to him.
Roach testified she did not overhear any of the conversation between Dunsmore and Camacho, but she could tell Camacho's voice was raised and agitated. Roach's daughter testified she heard Camacho, who sounded a little angry and disturbed, tell Dunsmore to stop harassing Roach. Camacho also said something like, "you want to start something or do something?" Camacho then told Dunsmore he was going over there. At the end of the conversation, Camacho said something like, "Bye, I'll see you."
Camacho's conversation with Dunsmore lasted a few minutes. Afterwards, Camacho told Roach he and Rahn were going to take care of the problem. They seemed excited and appeared to Roach to be under the influence of drugs.
Camacho admitted using methamphetamine the day before.
The witnesses testified to different versions of what happened next. According to Camacho and Rahn, Roach asked and even pleaded with them to go to Dunsmore's mother's home and find out what Dunsmore wanted. According to Roach and her daughter, Roach told them not to go over there because she did not want them to disturb Dunsmore's mother. When Camacho and Rahn left, Roach thought they were going to meet Dunsmore somewhere else.
Camacho and Rahn drove to Dunsmore's mother's home in Rahn's car. When they pulled up to the home, Dunsmore was in the driver's seat of his full-sized van. The van's engine was running. Rahn parked close to a curb about 50 feet from the van.
After Rahn and Camacho got out of Rahn's car, Dunsmore turned on the van's headlights, revved its engine, drove it toward them at a fast speed, and hit Rahn's car at an almost head-on angle. The impact totaled Rahn's car, knocked him down, and tore the meniscus on his left knee.
Dunsmore accelerated the van, pushed through Rahn's car, and turned the van toward Camacho, who was standing near a telephone pole. Dunsmore hit the telephone pole, knocking it down. Dunsmore chased Camacho as he ran through neighbors' front yards. After driving through a chain link fence and over a brick retaining wall with the van, Dunsmore used the van to knock Camacho down from behind. While leaning his head out of the van's window, Dunsmore drove the van back and forth over Camacho's body several times. Dunsmore then backed up, hit some trash cans, and sped down the street. Approximately 20 minutes later, he called 911, reported he had been attacked, and told the dispatcher where he and his van were located. The front end of his van had major damage and one of the windows was broken.
Neighbors who came to Camacho's aid noticed he smelled strongly of alcohol. Camacho lost consciousness in the ambulance and woke up in the hospital a couple of weeks later. His arm was broken in half. His clavicle, all of his ribs, and some vertebrae were also broken. He spent two months in the hospital, during which time he suffered a stroke, and when released he entered a rehabilitation facility. At the time of trial, he had slurred speech and difficulty walking. He also did not have full control of his left arm.
Defense Evidence
According to Dunsmore, when he called Roach's home that night, Camacho answered and said he was coming to Dunsmore's mother's home in a minute to "f—k [Dunsmore] up." Dunsmore told Camacho not to come over. Camacho told Dunsmore once again he was coming and then the phone went dead.
Dunsmore admitted having a prior felony conviction in 2004.
Dunsmore decided to leave to avoid a confrontation. He went outside, got into his van, and started it up. Before he could drive away, however, Rahn and Camacho drove up. Both men got out of Rahn's car. Rahn stood in the middle of the road and attempted to block Dunsmore from leaving. Dunsmore believed they were going to harm or kill him. He became scared and attempted to drive around Rahn's car, but ended up hitting its front end. After the collision, Dunsmore tried to stop the van, but the van kept moving forward because Dunsmore's GPS unit had broken off and trapped the gas pedal. The van hit a telephone pole and went over a retaining wall, and did not stop moving until it hit a fence. Camacho ran alongside the van as it was moving. When the van hit the wall, Dunsmore saw Camacho jump, but did not know whether Camacho had been hit. He denied running over Camacho.
Once Dunsmore regained control of the van, he backed it up, saw Camacho lying on the ground, drove down the street and called 911. He reported that two men had tried to attack him, he possibly hit one of them, and he left because he was scared.
Dunsmore testified he suffers from Ankylosing Spondylitis, which he described as a rare form of crippling arthritis. Because of his disease, he has chronic pain and his bones are fragile. He does not have the flexibility, strength, or stamina to fend off an attack. Consequently, he is afraid of confrontation.
An internist called by Dunsmore testified Dunsmore's condition causes inflammation in the lower spine and sacrum. People with this condition have morning stiffness and chronic joint pain. The condition does not make a person more violent, nor does it prevent a person from being involved in a physical confrontation.
Dunsmore further testified that Camacho had violent tendencies and was violent with him in the past. In addition to the incident where Camacho knocked the tobacco can out of Dunsmore's hand, there was an incident where Camacho tried to pull Dunsmore out of his van.
Rebuttal Evidence
In July 2007 Dunsmore yelled, screamed, and cursed at Roach's daughter as she was leaving for work. She started to drive away and Dunsmore threw a butter knife at her windshield, breaking it. She called Roach and told her what happened. Roach went home right away and asked Dunsmore if he had thrown something at her daughter's windshield. He said he had not and that someone else must have done it. Dunsmore asked Roach, "Aren't you supposed to be at work?" Roach replied, "Yes, but think of me as a lioness. When your cub is crying, you're going to come running."
Dunsmore closed the door, turned toward Roach and punched her in the face, causing her to fall onto a bed. She started screaming. Dunsmore put a comforter over her head and, while on top of her and holding her down, started choking her. Roach struggled and felt herself running out of breath.
James Stanley banged on the door. Dunsmore answered and the two men struggled. Roach tried to get out from under the comforter, and Dunsmore refocused on her and resumed choking her. Stanley screamed for help and another person came to their aid. After this incident, Roach obtained the second restraining order against Dunsmore.
At trial, Dunsmore testified he threw the butter knife in the air and it landed on Roach's daughter's car. He denied ever choking Roach.
The police officer investigating Dunsmore's possible violation of the first restraining order attempted to stop Dunsmore while he was driving his van in October 2003. Although the officer activated his car's lights and siren and followed Dunsmore, Dunsmore did not stop. Other officers deployed a spike strip on the freeway; however, Dunsmore swerved around it and kept going. The pursuit continued for about 13 miles. During the pursuit, Dunsmore's speed averaged about 60 miles per hour. After the officer took Dunsmore into custody, he asked Dunsmore why he did not stop. Dunsmore said he was scared, was under a lot of stress, and had a lot of problems.
DISCUSSION
I
Admission of Prior Domestic Violence and Prior Flight Evidence
A
Dunsmore's defense was he caused the injuries to Camacho and Rahn accidentally while trying to escape from them. In support of this defense, Dunsmore testified his health problems prevented him from engaging in violent confrontations. He also testified he fled after the incident because he was scared. After Dunsmore's testimony, the trial court allowed the prosecutor to present impeachment evidence of Dunsmore's prior acts of domestic violence against Roach in July 2007 and his flight from police in October 2003.
In discussing the admissibility of the evidence, the prosecutor and the trial court both mentioned Evidence Code section 1103 as potential authority for admission of the evidence. The trial court also mentioned Evidence Code section 1101, subdivision (b), and may have analyzed the issue under this section. We need not determine precisely which statute the trial court relied upon for its decision. "A reviewing court will uphold a judgment if it is correct for any reason ' "regardless of the correctness of [its] grounds . . . ." [Citation.] "It is judicial action and not judicial reasoning which is the subject of review . . ." ' " (People Ex Rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4.)
Dunsmore contends the trial court prejudicially erred in admitting this evidence. "On appeal, we review the trial court's rulings on the admissibility of evidence for abuse of discretion." (People v. Scott (2011) 52 Cal.4th 452, 491.) We conclude no abuse of discretion occurred in this case.
Generally, the trial court may not admit character evidence if it is offered to prove a defendant's criminal disposition. (Evid. Code, § 1101, subd. (a).) However, this rule does not affect "the admissibility of evidence offered to support or attack the credibility of a witness." (Evid. Code, §§ 780, 1101, subd. (c).) By choosing to testify, Dunsmore " 'put his own credibility in issue and was subject to impeachment in the same manner as any other witness.' " (People v. Doolin (2009) 45 Cal.4th 390, 438.)
In determining the credibility of a witness, a jury may consider any matter having a tendency in reason to prove or disprove the truthfulness of the witness's testimony, including the existence or nonexistence of a fact testified to by the witness. (Evid. Code, § 780, subd. (i).) As the prior domestic violence evidence tended to contradict Dunsmore's claims of being unable to engage in violent confrontations, the evidence was relevant and admissible to impeach this portion of Dunsmore's testimony. (People v. Lang (1989) 49 Cal.3d 991, 1017 [evidence tending to contradict any portion of a witness's testimony is relevant for impeachment purposes]; see also People v. Millwee (1998)18 Cal.4th 96, 127-128 [evidence of victim's fear and distrust of defendant admissible to impeach his testimony that the victim was not afraid of him and their relationship had no problems]; Andrews v. City and County of San Francisco (1998) 205 Cal.App.3d 938, 945-947 [evidence of police officer and defendant's unprovoked bullying and assaulting of other arrestees admissible to impeach officer's testimony he was patient with arrestees].) Similarly, the prior flight evidence was relevant and admissible to impeach Dunsmore's claim he fled out of fear because the evidence tended to show Dunsmore's claim was fabricated. (People v. Moody (1976) 59 Cal.App.3d 357, 361 [evidence of a defendant's use of the same explanation on more than one occasion admissible to show defendant's present explanation was fabricated]; see also People v. Millwee, supra, 18 Cal.4th at p. 131 [evidence defendant offered the same excuse for similar conduct admissible for impeachment purposes as jury could find such action diminished defendant's credibility].) Accordingly, we conclude the trial court did not err in finding the prior domestic violence evidence and prior flight evidence admissible for impeachment purposes.
We further conclude the trial court did not err in failing to exclude the evidence under Evidence Code section 352 as unduly prejudicial. " ' " Prejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in [an Evidence Code] section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption " 'substantially outweigh' " the probative value of relevant evidence, [an Evidence Code] section 352 objection should fail. [Citation.] " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.] [¶] The prejudice that [Evidence Code] section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Doolin, supra, 45 Cal.4th at pp. 438-439.)
Here, the prior domestic violence evidence and prior flight evidence was directly relevant to impeach Dunsmore's testimony. Although the prior domestic violence and prior flight evidence was unpleasant, the evidence of Dunsmore's actions toward Camacho was far more unpleasant. In addition, the prosecution's presentation of the domestic violence evidence and prior flight evidence included limited details, consumed little trial time, and did not cause any confusion of issues. Moreover, the jury was properly instructed not to let "bias, sympathy, prejudice, or public opinion" influence its decision. (CALCRIM No. 200.) Thus, Evidence Code section 352 did not require exclusion of the prior domestic violence and prior flight evidence. (People v. Doolin, supra, 45 Cal.4th at p. 439.)
II
Refusal to Impose Mandatory Fines, Fees, Surcharges, and Assessments At Dunsmore's sentencing hearing, the trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole revocation fine (§ 1202.45), and stayed the
latter. The trial court declined to impose any other fines, fees, surcharges, or penalty assessments, explaining, "Let me tell you my philosophy on fines. They want a zillion and a half dollars in fines. Okay. If I'm going to send a man to prison, whether, sir, it's for two years or 22 years, I am not tacking on humongous restitution fines and fees. I don't believe in it."
Although the trial court did not orally impose them, the abstract of judgment also shows imposition of a $90 court security fee under section 1465.8 and a $90 criminal conviction assessment under Government Code section 70373.
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The trial court's failure to impose the mandatory fines, fees, surcharges, and penalty assessments resulted in an unauthorized sentence correctable on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1157; People v. Smith (2001) 24 Cal.4th 849, 852-853.) We will, therefore, reverse this portion of Dunsmore's sentence and remand the matter to the trial court to identify and impose all appropriate mandatory fines, fees, surcharges, and penalty assessments.
DISPOSITION
The portion of the sentence related to fines, fees, surcharges, and penalty assessments is reversed. The matter is remanded to the trial court with directions to identify and impose all mandatory fines, fees, surcharges, and penalty assessments. The trial court is further directed to amend the abstract of judgment to reflect the imposition of these fines, fees, surcharges, and penalty assessments, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
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MCCONNELL, P. J.
WE CONCUR:
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NARES, J.
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MCINTYRE, J.