Filed 12/21/17 P. v. Churich CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT CHURICH,
Defendant and Appellant.


A150838

(Sonoma County
Super. Ct. No. SCR671648)



Defendant Robert Churich appeals from the trial court’s judgment of conviction after jury trial for a number of offenses stemming from his admitted attack on his elderly mother in October 2016. Defendant’s court-appointed counsel has filed a brief that does not raise any legal issues. He requests this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues for our consideration and affirm the trial court’s order.
BACKGROUND
In a February 2016 information, the Sonoma County District Attorney charged defendant with seven felony offenses: attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187 ); count one), with the special allegations that the victim was elderly and vulnerable (§§ 12022.7, subd. (c), 1203.09, subd. (a)); making criminal threats (§ 422, subd. (a); count two); inflicting great bodily injury on an elder and dependent adult 70 years of age or older (§ 368, subd. (b)(1) & (2); count three); dissuading a witness (§ 136.1, subd. (c)(1)); count four), with the special allegation that he inflicted great bodily injury on a person 70 years old or older (§ 12022.7, subd. (c)); assault with a deadly weapon (§ 245, subd. (a)(1); count five) with the special allegation that he inflicted great bodily injury on a person 70 years old or older (§ 12022.7, subd. (c)); vehicle theft (Veh. Code, § 10851, subd. (a); count six); and theft of access card account information (§ 484e, subd. (d); count seven).
Defendant pled not guilty. Before trial, there were various motions, including regarding what evidence was admissible. The most contested issue at the trial, which began in November 2016, was whether defendant had attempted to kill Jane Doe.
Detective Jesse Hanshew of the Sonoma County Sheriff’s Office Violent Crimes Investigations Bureau testified that on the afternoon of October 6, 2015, he was dispatched to a residence in Santa Rosa, California to investigate a report of an assault. He met Jane Doe outside a neighbor’s house. She was a bit frantic, emotional, bleeding and worried about her dog. She had “what appeared to be a fairly traumatic head wound.” She indicated that she had been assaulted by defendant, who was her son and lived with her. Hanshew was told defendant had driven away in Jane Doe’s Cadillac with Jane Doe’s dog, and that he had a girlfriend who lived in Healdsburg. Hanshew could not locate him that day.
The next day, Hanshew headed towards the Healdsburg address after the Cadillac had been spotted there. Along the way, he saw defendant driving in Jane Doe’s Cadillac with a female and stopped him. Defendant was “a bit defiant,” told Hanshew to “shut up” at one point, and asked Hanshew “to shoot him.” Jane Doe’s dog was not in the car, but her credit cards were there. Hanshew arrested defendant and transported him to jail.
Defendant talked to Hanshew during the ride to the jail. Hanshew recorded what was said, and the recording was played for the jury. At the beginning, defendant volunteered to Hanshew that he was 57 years old, and that Jane Doe was an “abusive, abusive, abusive mother” who beat him every day and put his hand in fire when he was a child. What she had done had stayed with him his whole life. He said without prompting, “And she beat me like beat me and beat me and beat me. And then I um I did it back. And that’s what I’m guilty of I don’t care if I spend three years I’m glad that I did it. Because I finally got my revenge. And the whole time I was sayin’ it too it’s like, a, it’s like how does it feel to be beatin’ little kids? How does it feel?
Hanshew interrogated defendant at the police station after reading him his Miranda rights. A recording of this interrogation was also played for the jury. Defendant said he had lived with his mother for two months and everything had been “fine.” On the day of the incident, the two went shopping for food, got along well, and returned home. He went to the kitchen and cracked open a walnut, ate some soup and returned to his room upstairs. Jane Doe came up to his room “blurin’ ” at him that he had left a piece of walnut on the floor that could have made the dog sick. Defendant thought his mother was “a crazy lady” and “very sick.” She told him she wanted him to live somewhere else. At one point, he told her, “ ‘You know what I wanna, I wanna just like kinda like um push you over the balcony right here . . . .’ ” His mother went downstairs, was “festering,” and accused him wrongly of poisoning her dog. Defendant went downstairs a short time later and heard the garage door open. He found Jane Doe outside the garage, cell phone in hand, and asked her what she was doing. She said she was calling the police because he had threatened to push her over the balcony. He pulled her into the garage, grabbed the phone to prevent her from calling and “slugged her” a couple of times in her face or chin. “I’m guilty right now bro,” defendant told Hanshew.
Hanshew asked defendant for more details. Defendant told him Jane Doe tried to run out of the garage but he pulled her back in and threw her into a bicycle. He grabbed a skillet and hit her in the head three times. Asked why, he said, “She beat me my whole life and I swear to God she beat me every day, every day . . . . I couldn’t help it. I enjoyed it. I enjoyed it.” He said, “So lock me up for life and that’s okay. I am glad that I did it.” He continued, “I’m glad I did it. I’m glad that I did it. I’m glad that I finally got the revenge. I’m finally glad that I got the revenge. That son of a bitch. How could she beat little kids the way she did?” He said he told Doe he hated her, but not that he wanted to kill her.
Defendant told Hanshew the skillet handle broke off, so he grabbed another skillet and hit his mother once in the head before it broke. He grabbed a third skillet and hit her over the head once with it. She said she was not going to call the police and when she stood up he threw her out of a side door and locked it. She unlocked the door and he got in her car, the dog jumped in and he drove off. He left the car in Windsor and took a bus to his girlfriend’s house. He also went to a market and a bar, retrieved the car and let the dog go in a parking lot after taking off its collar. He went to San Francisco, met a girl at a bar, went to her hotel and stayed with her that night, then returned to his girlfriend’s house in Healdsburg. He used Jane Doe’s credit card for some of his transactions. His girlfriend kept encouraging him to turn himself in, but he decided to take her out for steaks and to buy food for her before he turned himself in, which was when Hanshew spotted him.
Jane Doe also testified. She was 75 years of age at the time of trial. She described the incident in a manner that was generally consistent with defendant’s account, except that she said he told her he was going to kill her as he struck her. She said that she did not give defendant permission to take her Cadillac or use her credit cards. Also, she said, defendant had threatened to harm her in the past. She recovered her dog a couple of days after the incident.
Jane Doe also testified about her injuries. She had three injuries on her head and a black eye, received sutures in her head for multiple injuries and sustained cuts and bruises on her arm and hand. She suffered from vertigo for a long time after the incident, had some memory loss and still had some tender nodules on her skull, although they were not painful.
Jane Doe said she spanked defendant when he was a boy and “did use a wooden spoon, but not often. Just pulling it out of the drawer and he ran.” When he was about nine, she accidentally threw a fork at him that hit him in the chest “and he carried on like I was going to kill him.” She once turned the heat up on a stove “to show him a little heat” when he played with matches.
A neighbor of Jane Doe testified that on the day of the incident, a bloody Doe knocked on her door. Jane Doe said defendant tried to kill her with a frying pan and was worried that he would harm her dog.
A physician testified that he treated Jane Doe in October 2015 and diagnosed her with a concussion. She complained of headache, dizziness and altered vision in her right eye after sustaining a head injury. Her injuries were consistent with being hit on the head with a frying pan. Testing indicated she did not have major or acute trauma.
A second physician testified that she began treating Jane Doe in December 2015. Jane Doe said she was experiencing vertigo, had trouble finding words, had some difficulty thinking and was experiencing mild memory loss, all symptoms consistent with a concussion. Doe had nodules on her skull, which were caused by blood under the skin, and some forehead injuries that were tender and painful. The physician saw Jane Doe again in February 2016. Doe said she was still experiencing vertigo and dizziness and having some memory problems. Although it did not take a lot of force to cause a concussion, the physician assumed Jane Doe was hit with a forceful blow because of the stitches required for her laceration and her nodules.
The People also presented evidence that defendant had been convicted of four misdemeanors involving violence, including domestic violence, in 1998, 2004, 2006 and 2015.
An investigator testified that Jane Doe had told him prior to trial that she had thrown a fork when her two sons were little and accidentally hit one of them, defendant’s brother, in the chest, where the fork became embedded. Defendant’s brother testified that he saw the fork stuck in defendant’s chest after it was thrown. Also, he said, Doe had locked the boys in a closet when they were little and beat them all over their bodies.
Defendant’s girlfriend testified about what defendant told her about the incident, which was consistent with his statements to Hanshew, except that she recalled him telling her he wanted to kill Jane Doe as he hit her. He did not say that he told his mother he wanted to kill her. Defendant frequently borrowed Jane Doe’s car. His relationship with Jane Doe was “very sad,” and he talked a lot about the abuse he suffered as a child. She thought Jane Doe was verbally and physically abusive to defendant, including when she told him, “ ‘I can just kill you now.’ ” Defendant had previously committed domestic violence against his girlfriend in 2015 (which led to one of the misdemeanor convictions presented by the prosecution) and threatened to kill her.
The jury deadlocked on the attempted murder charge, count one, and the court declared a mistrial as to that count. The jury found defendant not guilty of count two, the making of criminal threats, and guilty of the remaining counts. It found the special allegations attached to these remaining counts were true.
At sentencing, the court rejected defendant’s request for probation because “[t]he facts of this case and the background of [defendant] clearly show to this Court that he has anger issues towards women that this Court is very concerned about in terms of releasing [defendant] on any grant of probation.” The court thought defendant’s anger towards Jane Doe was “so out of proportion to her actions that day” that he was “a true danger to society.” Regardless of the abuse that had occurred some 40 or 50 years ago, there was “no excuse” for his actions that day. The court further concluded that the factors in aggravation outweighed the factors in mitigation and that an aggravated term was appropriate because “[t]he crime involved great violence, which indicated a high degree of viciousness and callousness. After punching the victim and pushing her to the ground, [defendant] then continued to assault her by striking her over the head with one or more frying pans.” Defendant took advantage of his mother’s trust and confidence. Further, he had an “extensive” domestic violence history. And while he may not have caused his mother to suffer a long-lasting physical injury, he had “caused her to suffer . . . a lifelong emotional scar that will not heal.” As for factors in mitigation, he had performed appropriately or satisfactorily in the past on probation and parole.
The court deemed count three, the infliction of great bodily injury on an elder and dependent adult, to be the base term and imposed a sentence of nine years, which consisted of the upper term of four years under section 368 (b)(1) and an additional five years under section 368 (b)(2). It imposed a seven-year concurrent sentence for count four, the dissuading of a witness, which consisted of the upper term of four years for the charge plus three years for the special allegation. It imposed a seven-year concurrent sentence for count five, assault with a deadly weapon, consisting of the upper term of four years for the charge plus three years for the special allegation, and stayed that sentence under section 654. It imposed two eight-month sentences for counts six (vehicle theft) and seven (theft of access card information), each of which was one third of the middle term, to run consecutively to the base sentence. The total sentence imposed was for 10 years and four months in state prison. The court also imposed standard fees and fines, ordered that defendant pay a restitution fine of $9,000 and provide blood and saliva samples pursuant to section 296, and awarded him custody and conduct credits of 501 and 75 days respectively for a total of 576 days. The court issued a protective order prohibiting defendant from having any contact with Doe. The People moved to dismiss count one.
Defendant filed a timely notice of appeal.
DISCUSSION
We have conducted an independent review of the record under Wende and find no arguable appellate issues. We have not found any error. We need not discuss the legal bases for the trial court’s evidentiary rulings, jury instructions and other rulings in any detail because defendant’s statements to Detective Hanshew were clearly admissible. These statements, combined with the undisputed evidence of Jane Doe’s age and the severity of her injuries, support his convictions and make any possible error harmless.
As for the court’s decision to sentence defendant to an aggravated term for multiple counts, “[a] trial court’s sentencing decision is subject to review for abuse of discretion.” (People v. Hicks (2017) 17 Cal.App.5th 496, 512.) “Only a single aggravating factor is required to impose the upper term . . . .” (People v. Osband (1996) 13 Cal.4th 622, 728.) California Rules of Court, rule 4.421 lists factors that may be considered in aggravation and California Rules of Court, rule 4.423 lists factors that may be considered in mitigation. The aggravation factors include that the crime “involved great violence . . . or other acts disclosing a high degree of cruelty, viciousness, or callousness”; that defendant used a weapon; that the victim was particularly vulnerable; that defendant attempted to dissuade a witness; that defendant was convicted of crimes for which consecutive sentences could have been imposed but concurrent sentences were imposed; that defendant took advantage of a position of trust or confidence to commit the crime; and that defendant engaged in violent conduct that indicated a serious threat to society. (Cal. Rules of Court, rule 4.421(a)(1), (2), (3), (6), (7), (11) and (b)(1).) In light of the evidence before the trial court of multiple aggravating circumstances, there are no arguable appellate issues regarding defendant’s sentencing.
DISPOSITION
The judgment is affirmed.






STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




















People v. Churich (A150838)