P. v. Byrd

Filed 5/31/06 P. v. Byrd CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Kenneth Ray Byrd was convicted by a jury of corporal injury of a cohabitant (Pen. Code, § 273.5, subd. (a)),[1] enhanced by a finding of personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and of battery with serious bodily injury (§ 243, subd. (d)). Defendant admitted seven prior convictions, and four prior prison terms (§ 667.5, subd. (b).) The court struck several of the priors for purposes of sentencing, stayed the sentence on the battery count (§ 654), and sentenced defendant to thirteen years in prison, representing four years on the cohabitant injury count, five years on the great bodily injury enhancement, and one year for each of the four prison priors. The issues on appeal center on whether he was cohabiting with the victim at the time of the offense. Substantial evidence supported the jury's verdict on this element of the offense, and defendant's other arguments involving this element lack merit. We affirm.

I.

Defendant punched Q.W. in the face on October 31, 2004, breaking her jaw. The incident occurred at Q.W.'s townhouse, where defendant had been living with Q.W. and her three daughters since about August 20, 2004. Q.W. testified that they were boyfriend and girlfriend, and had an intimate physical relationship, while they lived together. Defendant moved his clothes and furniture[2] into the townhouse, and â€