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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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 assaulted

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 

improperly 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 requires reversal, 
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(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 that 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 facts. 

We therefore provide this brief summary. 

As 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 forth 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. One morning, defendant woke 

up Heather by kicking her in the ribs. He accused her of infidelity 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 beat 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, 
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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. Yuba County Sheriff’s 

Department deputies responded and arrested 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 corporal 

injury on a cohabitant, and the jury found defendant guilty of misdemeanor false 

imprisonment (as a lesser included offense of felony false imprisonment), battery on a 

cohabitant (as a lesser included offense of willful infliction of corporal injury on a 

cohabitant), and criminal 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 used a knife, a 

BB gun, and a broomstick and that he personally inflicted great bodily injury. Defendant 

admitted having a prior conviction for second degree robbery. 

The trial court sentenced defendant to consecutive determinate terms of 16 years 

each for 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, 
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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 serious felony conviction 

(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 (Evid. 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 proper.

“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 prior 

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 defendant is accused of an 

offense involving domestic violence, evidence of the defendant’s commission of other 
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domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the 

evidence is not inadmissible pursuant to [Evidence Code] Section 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 offer 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 listened 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 to 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 

prostitution, 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 sections 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 consume trial time under Evidence Code section 352. 
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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 1101, 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 discretion in allowing the jury 

to consider Rosie’s testimony as evidence of his propensity to commit domestic violence 

and sex offenses pursuant to Evidence Code sections 1108 and 1109.” 

Defendant contends that the trial court abused its discretion in admitting 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 committed 

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 Code 

sections 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 offenses against 

Heather. 

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 not 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 of propensity evidence violated his 

due process rights, the California Supreme Court has decided to the contrary, as 
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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 convictions. Although the robbery conviction 

was somewhat remote, the trial court allowed its use in both trials because defendant had 

not remained crime 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 impeachment 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. 
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Under the Evidence Code section 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, the court may consider 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 automatically inadmissible for impeachment 

purposes. Even a fairly remote prior conviction 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 evidence 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 blameless 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 credibility 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, defendant contends it was error to give the instructions because 
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the evidence was insufficient to support the inference of consciousness of guilt. The 

contention is without merit because the evidence 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 show 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 who it was, so he 

walked out the back 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, that 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 itself.” 

“[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.’ [Citations.] ‘ “[F]light requires neither the 

physical 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 deputies 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 to 
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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. The evidence was sufficient to show consciousness 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. Daugherty 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 

knowledge 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 

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

assaulted. 
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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, experience, 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 disregard 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 based 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 evaluating 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 

“harmless 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 claim 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 omitted instruction been given. [Citations.]” ’
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[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 

Watson standard.

Here, although the court did not instruct under CALCRIM No. 332, it instructed

the jurors on how to evaluate witness testimony in CALCRIM No. 226, which told them 

to “judge the credibility or believability of the witnesses,” applying “the same standards” 

to “the testimony of each witness,” and to “[c]onsider the testimony of each witness and 

decide how much of it you believe.” Regarding how to evaluate believability, the 

omitted instruction would have specifically referred the jury to CALCRIM No. 226.

(CALCRIM No. 332 [“In evaluating the believability of an expert witness, follow the 

instructions about the believability of witnesses generally”].) On that point, CALCRIM 

No. 226 directed the jurors that they could “believe all, 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 the 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 sufficient to prove any fact but that, before the jury 

concluded it did, the jury must “carefully review all the evidence.” And the court told the 

jury how to evaluate conflicting evidence under CALCRIM No. 302. Together these 

instructions substantially covered all of the matters required by Penal Code section 1127b 

and CALCRIM No. 332 and adequately equipped the 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.
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Defendant argues that the failure to instruct on expert testimony using CALCRIM 

No. 332 was not harmless because Daugherty’s testimony supported Heather’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 jury 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 no 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 Attorney 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.
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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 separately list in 

the abstract of judgment each penalty 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 must be remanded for 

amendment of the abstract of judgment.

At the sentencing 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 and 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 torture 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 judgment 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 OF 
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PAROLE.” As defendant argues, and the Attorney General agrees, this clerical error 

must 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.