P. v. Diaz
Filed 6/18/08 P. v. Diaz CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS DIAZ, Defendant and Appellant. | G039637 (Super. Ct. No. 07CF0658) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Luis A. Rodriguez, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
FACTUAL AND PROCEDURAL HISTORY
After defendant Jose Luis Diaz waived his right to a jury trial on his prior serious felony convictions and strikes, he was convicted of inflicting corporal injury resulting in trauma on Rosalinda Barrera, the mother of his children and with whom he had resided for about 13 years. (Pen. Code, 273.5, subd. (a); all further statutory references are to this code unless otherwise noted.) Defendant admitted two prior prison terms ( 667.5, subd. (b)) and two prior strike convictions ( 667, subds. (d), (e) & 1170.12, subds. (b) & (c)(2)(A)) and then moved to strike the convictions. The court granted the motion as to one conviction. It sentenced defendant to the upper term of four years (273.5) and, based on the remaining strike conviction, doubled it to eight years ( 667, subds. (d), (e)(1)). Two additional consecutive one-year terms were also imposed based on two prior prison terms defendant admitted. ( 667.5, subd. (b).)
According to testimony from a police officer who interviewed Barrera, defendant punched Barrera numerous times, knocking her to the floor and causing her to bleed. He also had her in a choke hold. He threatened to kill her if she called the police so she waited two days to do so. She was still afraid of defendant. Both daughters witnessed at least part of what happened and heard part of the violence as well. At trial Barrera recanted her report of the incident or claimed not to remember.
After defendant appealed we appointed counsel to represent him. Counsel filed a brief setting forth the facts of the offenses and the disposition. He did not argue against defendant but advised the court he had not found any issues to present on defendants behalf. (People v. Wende (1979) 25 Cal.3d 436.) He suggested seven issues to assist us in our independent review of the record as set out below.
Defendant was given 30 days to file written argument on his own behalf. That period has passed and we have received no communication from him. We examined the entire record to determine if any arguable issues were present, including those suggested by counsel, and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)
DISCUSSION
1. Sufficiency of the Evidence
In assessing sufficiency of the evidence claim, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation .] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the verdict is supported by substantial evidence, we are bound to give deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (Ibid.) The standard of review applies even when the conviction rests primarily on circumstantial evidence. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The record discloses more than sufficient evidence to support the conviction.
2. Evidence of Prior Acts of Domestic Violence
Except in instances not applicable here, evidence of prior acts of domestic violence are admissible in a criminal action where a defendant is being tried for domestic violence so long as not barred by Evidence Code section 352. (Evid. Code, 1109, subd. (a)(1), (e), (f).) Here, after considering possible confusion of the jury and the remoteness of the acts, the court admitted evidence of three prior acts of domestic violence involving the same victim occurring in 1995 and 1997 and denied admission of one prior from March 1995 as more prejudicial than probative. The record does not reveal any abuse of discretion in admitting this evidence. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1029.)
3. Motion for Mistrial
Prior to trial the court ruled that evidence of defendants prior incarceration was barred by Evidence Code section 352 and the prosecutor agreed to admonish Barrera not to mention it. During trial, in response to a question from defendants lawyer, Barrera testified that before the incident for which defendant was being tried, the last time defendant inflicted corporal injury on her was 10 years prior. The prosecutor followed up, asking Barrera to confirm that she and defendant had not been living together for 6 of those 10 years. Barrera answered that they had been living together except for when defendant was in prison.
Defense counsel immediately objected and moved to strike the answer, which the court did, and then moved for a mistrial, stating that because the jury had heard defendant was in prison, it would infer it was based on the prior offenses. Counsel also asked for a jury instruction. The court denied the motion but immediately instructed the jury that the statement about prison was not a fact or an issue before it and the jury was to disregard the statement for all purposes.
A court should declare a mistrial only when the defendants chances of receiving a fair trial have been irreparably damaged. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 573, 574 [denial of motion upheld where witnesss testimony that the defendant had been in prison because jury admonished not to consider statement].) The admonition was sufficient to give defendant a fair trial.
4. Refusal to Strike Defendants Second Prior Serious Felony Conviction
Defendant moved to strike both of his prior serious felony convictions. In its discretion the court struck one. ( 1385, subd. (a).) To strike a strike, the court must consider whether, in light of the nature and circumstances of his present felonies and prior serious . . . felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit . . . and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.) The remaining strike was for threatening to commit a crime resulting in great bodily harm or death ( 422) against the same victim. The court did not abuse its discretion in declining to strike it.
5. Upper Term Sentence
The court did not err in sentencing defendant to the upper term without a jury trial on the aggravating circumstances. (Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].) It found defendant had numerous parole and probation violations and the current crime was the same as prior similar crimes. This was sufficient. (People v. Black (2007) 41 Cal.4th 799, 812-813, 818-819.)
6. Fines, Penalties, and Assessments
The court imposed a $200 restitution fine ( 1202.4, subd. (b)) and a $200 parole revocation fine ( 1202.45), the latter of which was suspended. It also imposed a $20 court security fee. ( 1465.8.) Barrera waived the right to restitution but the court retained jurisdiction to determine whether defendant should pay victim restitution to his two daughters. ( 1202.4, subd. (a)(3)(b).) Each assessment was authorized by the respective statute cited.
7. Presentence Custody Credits
Defendant was awarded credits of 280 days for actual time and 140 days of good time/work time for a total of 420 days. Defense counsel supplied the numbers for the credits and nothing in the record shows any error.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.
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