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Filed 5/25/16 P. v. Dyson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v. TYRONE LAWRENCE DYSON,

Defendant and Appellant. C073254
(Super. Ct. No. CRF12

- 209)

Over the course of several days, defendant tortured and sexually assault ed Heather. Convicted of numerous crimes and sentenced to long determinate and indeterminate terms in state prison, defendant appeals. He contends: (1) admission of prior sexual and domestic violence offenses violated his due process rights, (2) he was
im properly impeached with a prior conviction, (3) a jury instruction concerning flight as consciousness of guilt was not supported by the evidence, (4) the court improperly failed to instruct the jury sua sponte on expert testimony, (5) cumulative error requ ires reversal,2

(6) he is entitled to one additional day of presentence conduct credit, (7) the abstract of judgment must be amended to specify the allocation of sex offender fines, and (8) there is a clerical error in the abstract of judgment. We agree th at defendant is entitled to one additional day of presentence conduct credit, but the remaining contentions concerning the judgment are without merit. We also agree that the trial court must amend the abstract of judgment to specify the
allocation of sex offender fines and correct the clerical error. Therefore, we modify and affirm the judgment and remand for amendment and correction of the abstract of judgment.
BACKGROUND Defendant’s contentions on appeal do not require a detailed recitation of the fact s. We therefore provide this brief summary.
A s we explain later , defendant was tried twice in this case. However, his contentions on appeal do not require us to provide an explanation as to how the evidence in the two trials differed, except as set fo rth in the discussion, below. Defendant and Heather lived together in a residence as boyfriend and girlfriend

. They spent much of their time high on methamphetamine. On e morning, defendant woke up Heather by kicking her in the ribs. He accused her of i nfidelity and told her she would not live through the day. Heather left, but she returned eight or nine days later. Soon after her return, defendant again began accusing her of infidelity. Defendant spent hours listening to a recording he had made with his phone, and he claimed that he could hear Heather in the recording having relations with other men. Over the next several days, defendant assaulted and threatened Heather, telling her that he was the jury, the judge, and the court and he was going to b eat her to death because she was convicted. Defendant punched and slapped Heather repeatedly , threatened to sexually assault her with a broomstick, hit her with the broomstick, forced her to have intercourse while he
held a knife and wore a condom , cut her leg and placed the knife on her clitoris,3

threatened to shove the knife into her vagina, threatened to submit her to prostitution, sexually assaulted her with a vibrator, forced her to orally copulate him, threatened her family, stabbed a hole in the wall , stabbed the bed around her , pointed a BB gun at her
and threatened to shoot her , and choked her. After defendant had not slept for several days, he finally fell asleep, and Heather escaped. She went to a neighbor’s house and called 911. Yub a County Sheriff’s Department deputies responded and arrest ed defendant. Defendant was tried by jury on nine counts associated with Heather. The jury found defendant not guilty of felony false imprisonment and willful infliction of co rporal injury on a cohabitant , and the jury found defendant guilty of misdemeanor false imprisonment (as a lesser included offense of fel ony false imprisonment) , battery on a cohabitant (as a lesser included offense of willful infliction of corporal injury on a
cohabita nt) , and c riminal threats . On the remaining six counts, however, the jury was
unable to reach a verdict , so the trial court declared a mistrial as to those counts

. The prosecution retried the remaining counts against defendant before a new jury. This jury found defendant guilty of torture, rape, forcible sexual penetration, forcible oral copulation, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury. As to various counts, the jury found that the defendant use d a knife, a BB gun, and a broomstick and that he personally inflicted great bod ily injury. Defendant admitted having a prior conviction for second de gree robbery.
The trial court sentenced defendant to consecutive determinate terms of 16 years
each fo r rape (Pen. Code, § 261, subd. (a)(2)) , forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)) , and forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A))

. The court imposed an additional 10 years each for being armed with a deadly weapon on the rape and forcible sexual penetration counts (Pen. Code, § 12022.3, subd. (a)) , as well as an additional five years for having a prior serious felony conviction (Pen. Code, § 667,4

subd. (a)(1))

. The remaining counts and enhancements were stayed under Penal Code
section 654. Therefore, the aggregate determinate term imposed was 73 years. The court also imposed a consecutive indeterminate life term for torture. (Pen. Code, §§ 206, 206.1.) As to the indeterminate term, the court (1) doubled the minimum parole eligibility to 14 years because of the prior strike conviction (Pen. Code, §§ 667, subd. (e)(1)), 1170.12, subd. ( c)(1)) , (2) added one year for knife use (Pen . Code, § 12022, subd. (b)(1)), and (3) added five years for his prior seriou s felony co nviction (Pen. Code, § 667, subd . (a)(1)). As a result, defendant’s minimum parole eligibility for
the life term is 20 years.
DISCUSSION
I
Evidence Code Sections 1108 and 1109 Defendant contends that evidence of his prior sexual offenses (Ev id. Code, § 1108) and domestic violence (Evid. Code, § 1109) against Rosie Q. should have been
excluded at his second trial. He claims that the introduction of the evidence violated his due process rights. To the contrary, admission of the evidence was p roper. “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, § 1108, subd. (a).) “ Nearly every published opinion interpreting [Evidence Code] section 1108 (including some from this court) has recognized that this provision allows, when proper, evidence of prio r uncharged sexual offenses to prove propensity. [Citations.]” ( People v. Villatoro (2012) 54 Cal.4th 1152, 1160.) Similarly, Evidence Code section 1109 allows evidence showing a propensity for
domestic violence : “ [I] n a criminal action in which the d efendant is accused of an offense involving domestic viol ence, evidence of the defendant’ s commission of other5

domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Sectio n 352. ” (Evid. Code, § 1109, subd. (a)(1).) After the first trial had ended, the prosecutor received information that defendant had previously committed similar crimes against another victim. In a motion to admit the evidence, the prosecutor made an off er of proof: Rosie Q. moved in with defendant in
2008. Soon thereafter , defendant began acting violently toward her and accusing her of infidelity . He beat her in the arms, legs, and head with a wooden closet rod; recorded her with his cell phone and li sten ed to the recordings to hear what she had been doing; and accused her of having sex with other people. During one incident, he forced her to kneel for several hours while he tried to force her to admit cheating. Another time, when her
children came t o visit, he put a rifle in her mouth and told her to be quiet until they left. He made her suck the end of the rifle as if performing oral sex. When defendant beat up Rosie Q., he told her that he was the “judge, jury, and executioner.” He liked having knives, and he stabbed the bed around her while she was sitting on the bed. Defendant constantly used methamphetamine and supported himself by selling drugs. He always used a condom when they had sex , and defendant encouraged her to engage in prostitutio n , which she never did.
The trial court found that the evidence relating to Rosie Q. showed intent, motive, a common scheme or plan , and absence of mistake, so that it was admissible under Evidence Code section 1101, subdivision (b). The court also found that the prior conduct was not more serious than the charged crimes and not remote, so that it was admissible
under Evidence Code se ctions 1108 and 1109 as prior sexual offenses and prior domestic violence, respectively. Finally, the court determined that any prejudicial effect of the evidence did not substantially outweigh its probative value and that the evidence would

not unduly co nsume trial time under Evidence Code section 352.6

The testimony of Rosie Q. was substantially consistent with the prosecutor’s offer of proof. And the trial court properly instructed the jury concerning use of such evidence
under Evidence Code sections 110 1, 1108, and 1109. Defendant implicitly concedes that the trial court properly admitted Rosie Q.’s testimony under Evidence Code section 1101 because he does not contend otherwise. Instead, he claims, in his words, “the trial court abused its discr etion in allowing the jury to consider Rosie’s testimony as evidence of his propensity to commit domestic violence and sex offenses pursuant to Evidence Co de sections 1108 and 1109.”
Defendant contends that the trial court abused its discretion in admit ting the evidence under Evidence Code sections 1108 and 1109 because (1) there were “some noticeable differences between” the testimony of Rosie and Heather , (2) there was a “probability of confusion” that the jury was punishing defendant for the acts comm itted against Rosie, and (3) admission of propensity evidence violated his due process rights. Concerning the differences in defendant’s offenses against Rosie and Heather , there is no requirement of similarity for admission of evidence under Evidence C ode
section s 1108 and 1109, other than that they must be sexual offenses or domestic violence. ( See People v. Soto (1998) 64 Cal.App.4th 966, 984.) In any event,
defendant ’s prior offenses against Rosie were remarkably similar to the off enses against
Hea ther

. Concerning the probability of confusion, defendant contends that, because the record reveals that defendant was not punished for his offenses against Rosie, there is a probability that the jury felt it should punish defendant for those offenses. But defendant
does n ot provide a citation to the record showing that the jury was informed that defendant was not punished for the sexual offenses and domestic violence committed against Rosie. Therefore, his contention fails. And concerning his contention that admission o f propensity evidence violated his due process rights, the California Supreme Court has decided to the contrary , as7

defendant acknowledges

. ( People v. Falsetta (1999) 21 Cal.4th 903; People v. Johnson (2000) 77 Cal.App.4th 410; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II Impeachment with Prior Conviction Defendant was convicted of robbery and possession of a controlled substance in 1993. In 2008, he was convicted of possession of cocaine base for sale. And in 2011 , defendant violated probation on the 2008 conviction. Over defendant’s objection, the trial court permitted the prosecution to impeach defendant with his 1993 robbery and the 2008 possession of cocaine base for sale conviction s

. Although the robbery con viction was somewhat remote, the trial court allowed its use in both trials because defendant had
not remained cri me free since then. On appeal, defendant contends the trial court abused its discretion in admitting the 1993 robbery conviction as impeachment , arguing that prejudice from such use substantially outweighed the probative value concerning his credibility

. We disagree. Article I, section 28, subdivision (f) (4) of the California Constitution authorizes use of prior convictions for impea chment purposes : “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” Admission of prior conviction evidence for impeachment purposes
is subject to the trial court’ s exercise of discretion under Evidence Code section 352. ( People v. Castro (1985) 38 Cal.3d 301, 306.) “ ‘No .

. . defendant who elects to testify
in his own behalf is entitled to a false aura of veracity.’ [Citation.]” ( People v.
Tamborrino (1989) 215 Cal.App.3d 575, 590.) Robbery is a crime of moral turpitude. ( People v. Gray (2007) 158 Cal.App.4th 635, 641.) And defendant so concedes.8

Under the Evidence Code s ection 352 analysis of whether the prejudicial effect substantially outweighs the probative value of the evidence, “ [i] f a prior felony conviction has been followed by a legally blameless life, remoteness is important. [Citation.] Thus, t he court may con sider defendant’ s conduct subsequent to the prior
conviction. [Citations.]” ( People v. Tamborrino, supra , 215 Cal.App.3d at p. 590.)

“ [C]onvictions remote in time are not autom atically inadmissible for impeachment
purposes. Even a fairly remote prior c onviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. [Citations.]” ( People v. Mendoza (2000) 78 Cal.App.4th 918, 925

- 926.) “A trial court’s exercise of discretion in admitting or excluding evi dence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” ( People v. Rodriguez (1999) 20 Cal.4th 1, 9

- 10.) Defendant contends that admission of the robbery conviction was error because of the danger the jury would construe it as evidence of his propensity to commit crimes. He also claims that he lived a relatively blam eless life between the 1993 robbery conviction
and the current crimes.
We conclude the trial court did not abuse its discretion. The jury was properly instructed that it was allowed to consider a witness’s prior conviction “only in evaluating
the credi bility of the witness’s testimony.” And the record demonstrates that defendant
had not led a crime

- free life between the 1993 robbery conviction and the current crimes.
III CALCRIM No. 372 on Flight The trial court instructed the jury on flight as evidence of consciousness of guilt in
both trials . On appeal, d efendant contends it was error to give the instructions because9

the evidence was insufficient to support the inference of consciousness of guilt. The
contention is without merit because the e vidence of flight was sufficient. Heather escaped from the house while defendant was asleep. She went to a neighbor’s residence and called 911. Deputy Karen Howard was among the Yuba County Sheriff’s Department deputies who responded to the scene. She concealed
herself behind the back fence of the residence as other deputies approached the front door. She saw defendant come out the back door, talking on a cell phone. Defendant walked to the gate and tried to unlatch it, but it was wired shut. He then walked to the back fence and peeked over. At that point, a deputy ordered defendant to s how his hands. Defendant complied and was arrested. Defendant testified that he woke up when he heard officers kicking the door. He looked out the window and saw w ho it was, so he
walked out the bac k door. Using CALCRIM No. 372, the trial court instructed the jury: “ If the defendant
fled or tried to flee immediately after the crime was committed , or after he was accused of committing the crime , th at conduct may show that he was aware of his guilt. If you
conclude that the defendant fled , or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled , or tried to flee, cannot prove guilt by itsel f. ” “[A] flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation s .] ‘ “[F]light requires neither the phys ical act of running nor the reaching of a far

- away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’ [Citation.]” ( People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Here, defendant saw the de puties and tried to escape out the back door. That he
did not make it far and that he cooperated once contacted did not require the finder of fact
to conclude that he was not trying to escape. Therefore, this evidence was sufficient to10

allow the jury to reasonably infer that defendant was fleeing because he was conscious of his guilt. However, defendant argues that the evidence was insufficient because he was talking on his cell phone, was not running, did not try to remove the wire from the gate,
and did not appear to be ready to jump over the fence. Defendant’s argument is not persuasive. T he evidence was sufficient to show co nsciousness of guilt because
defendant tried to avoid the deputies. The other circumstances cited by defendant went only to the weight of the evidence to show consciousness of guilt and did not preclude a flight instruction.
IV

CALCRIM No. 332 on Expert Testimony An expert on sexual assault examinations testified at defendant’s second trial, but the trial court did not give CALCRIM No. 332 to inform the jury on how to assess expert testimony. Defendant contends the failure to give an instruction concerning expert testimony was prejudicial error requiring reversal of the convictions in the second trial. We conclude that any error in not instructing the jury concerning expert testimony was
harmless. Patricia Daugherty testified for the prosecution. She is a physician assistant and
forensic examiner for the Sutter Medical Foundation , and she examined Heather after defendant’s crimes

. Daugh er t y testified both concerning her observations (which testimony does not require the expert testimony instruction ( People v. Lynch (1971) 14 Cal.App.3d 602, 609) ) and concerning matters about which she possessed specialized
knowl edge as an expert (see Evid. Code, § 720, subd. (a)). In the latter category, Daugherty testified that Heather’s injuries were indicative of trauma, were in the process of healing, and were consistent with Heather’s description of the crimes. She also

te stified that the absence of vaginal injuries did not establish that Heather had not been

assau lted.11

Penal Code section 1127b requires the court to instruct sua sponte on expert testimony whenever an expert testifies in a criminal proceeding. ( People v. Reeder (1976) 65 Cal.App.3d 235, 241.) As relevant to this case, CALCRIM No. 332 provides: “A witness was allowed to testify as an expert and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experien ce, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disr egard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion base d on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in e valuating the expert’ s opinion.” Even assuming the trial court erred by not instructing the jury in the second trial concerning expert testimony, any error was harmless. Although defendant asserts the

“ har mless beyond a reasonable doubt” standard prescribed in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705 , 710

- 711 ] applies, California courts employ the reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818, 836, to errors in failing to give a particular instruction sua sponte ( People v. Breverman (1998) 19 Cal.4th 142, 178 ). Regarding defendant’ s c laim here, “ ‘ “ the erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might
have rendered a different verdict had the om itted instruction been given. [Citations.] ” ’12

[Citations.] ” ( People v. Williams (1988) 45 Cal.3d 1268, 1320, modified on another point in People v. Guiuan (1998) 18 Cal.4th 558, 560

- 561.) We therefore apply the
Wat son standard

. Here, although the court did not instru ct under CALCRIM No. 332, it instruct ed the jurors on how to evaluate witness testimony in CA LCRIM No. 226, which told them

to “ judge the credibility or believability of the witnesses,” applying “the sa me standards” to “the testimony of each witness ,” and to “ [ c]onsider the testimony of each witness and
dec ide how much of it you believe.” Regarding how to evaluate believability, the
omitted instruction would have specifically referred the jury to CALC RI M No. 226. (CALCRIM No. 332 [“ In evaluating the believability of an expert witness, follow the
instructions about the belie vability of witnesses generally” ].) On that point , CALCRIM
No. 226 dire cted the jurors that they could “ believe al l, part, or none of any witness’s testimony” and “ may consider anything that reasonably tends to prove or disprove the
truth or accuracy of that testimony,” such as the reasonableness of “ the testimony when you consider all the other evidence in the case.” This includes t he reasonableness of Daugherty’s opinions concerning Heather’s injuries and whether they were consistent with Heather’s descriptions of the crimes. Additionally, the court instructed the jury with CALCRIM No. 301 that one witness’s testimony alone was suf ficient to prove any fact but that, before the jury
concluded it d id, the jury must “ car efully review all the evidence.” And the court told the jury h ow to evaluate conflicting evidence under CALCRIM No. 302. Together these instructions substantially cov ered all of the matters required by Penal Code section 1127b and CALCRIM No. 332 and adequately equipped t he jury to evaluate Daugherty’s testimony. We presume the jury followed these instructions absent any contrary
indication. ( People v. Gray (2005) 37 Cal.4th 168, 217.) On this record, any error in failing to give CALCRIM No. 332 was harmless.13

Defendant argues that the failure to instruct on expert testimony using CALCRIM No. 332 was not harmless because Daugherty’s testimony supported Heat her’s version of
the events. This is critical, asserts defendant, because the jury was never told it could disregard Daugherty’s opinions if it found them unsound. Nonetheless, defendant points to no particular element of Daugherty’s testimony that the j ury would have reasonably rejected. Under these circumstances, it is not reasonably probable defendant would have obtained a more favorable result if the court had instructed the jury concerning expert testimony in the second trial. ( People v. Williams , supra, 45 Cal.3d at p. 1320.)
V
Cumulative Error Defendant contends that errors in his two trials cumulatively resulted in prejudice even if they did not prejudice him separately. However, because (1) we have not found multiple errors and (2) there was n o prejudice even assuming error in the failure to instruct the jury in the second trial concerning expert testimony, the contention that cumulative prejudice requires reversal is without merit.
VI
Presentence Conduct Credit Defendant argues, and the Attor ney General agrees, that he is entitled to one more day of presentencing conduct credit than he was awarded by the trial court. We also
agree. Because defendant was convicted of violent felonies, he was entitled to no more
conduct credit than 15 percent of the actual days in custody. (Pen. Code, § 2933.1.) Here, defendant served 307 days in actual presentence custody, so he was entitled to 46 days of conduct credit. But the trial court awarded just 45 days of presentence conduct
credit.
We therefore must modify the judgment to reflect one more day of presentence custody credit.14 VII Sex Offender Fines Defendant argues, and the Attorney General agrees , that we must remand for amendment of the abstract of judgment because the trial court failed to sepa rately list in the abstract of judgment each penalt y assessment included in the $1,140 fine imposed
under Penal Code section 290.3 , which provides for a fine for commission of a crime that requires sex offender registration

. We also agree that the case mu st be remanded for amendment of the abstract of judgment.
At the senten cing hearing, the court stated: “Pursuant to Penal Code section 290.3, you must pay a fine of $1,140 for Count IV.” The court then asked: “Does
Defense counsel waive a breakdown of the fines imposed pursuant to Penal Code section
290.3 .

. . ?” Counsel waived the breakdown, so the court did not provide it. The abstract of judgment lists the $1,140 fine but also does not provide a breakdown. As we have held before, “[a]ll fines and fees must be set forth in the abstract of judgment.” ( People v. High (2004) 119 Cal.App.4th 1192 , 1200; see also People v.
Hamed (2013) 221 Cal.App.4th 928, 934

- 937 [requiring “ ‘ a detailed recitation of all the fees, fines a nd penalties on the record ’ ”].) Failure to break down the component parts of the Penal Code section 290.3 fine is an unauthorized sentence. ( People v. Hamed, supra, at p. 941.)
VIII Abstract of Judgment Correction The abstract of judgment contains a clerical error. On the tort ure conviction ( count 1 ) , the trial court sentenced defendant to life with possibility of parole. Considering the enhancements associated with count one, the minimum parole eligibility is 20 years. The abstract of j udgment correctly reflects the sentence on count one except that the clerk checked the box next to “LIFE WITHOUT THE POSSIBILITY OF PAROLE,” instead of the correct box, which reflects “LIFE WITH POSSIBILITY OF15

PAROLE.” As defendant argues, and the Attorney General agrees , this clerical error

m ust be corrected on remand.
DISPOSITION The judgment is modified to add one more day of presentence conduct credit for a total of 46 days of presentence conduct credit. As modified, the judgment is affirmed.
The matter is remanded to the trial court for amendment and correction of the abstract of judgment consistent with this opinion, and the trial court is directed to send the amended
and corrected abstract of judgment to the Department of Corrections and Rehabilitation.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.