Filed 6/29/17 P. v. Diaz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
CESAR HUMBERTO DIAZ,
Defendant and Appellant.

A148338

(Contra Costa County
Super. Ct. No. 5-142331-8)


Appellant Cesar Humberto Diaz was convicted after a jury trial of assault with a deadly weapon against his former wife with the use of a knife, attempted infliction of corporal injury on her, criminal threats, and personal use of a deadly and dangerous weapon. Appellant’s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Appellant has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the entire record, we find no errors or other issues requiring further briefing, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A first amended information was filed charging appellant for events arising in Contra Costa County on August 24, 2014: count 1: attempted premeditated murder (Pen. Code, §§ 664, subd. (a)/187, subd. (a) ); count 2: inflicting corporal injury on a spouse (§ 273.5, subd. (a)); counts 3 and 5: assault with a deadly weapon, a serious felony (§§ 245, subd. (a)(1), 1192.7, subd. (c)); and count 4: criminal threats (§ 422). There were also enhancements alleged for personal use of a deadly and dangerous weapon. (§ 12022, subd. (b)(1).)
Count 5, and the special allegation, were dismissed at the beginning of trial, before the jury being impaneled.
The court ruled on the motions in limine filed by each side. Among the motions in limine, the prosecution sought to introduce multiple prior acts of domestic violence under Evidence Code section 1109. The trial court held lengthy and thorough hearings on these and all motions in limine, as well as other evidentiary issues that were presented in the course of the trial. The court conducted multiple hearings pursuant to Evidence Code section 402, including on the admissibility of 911 calls.
A jury was impaneled and sworn. Appellant’s brief sets forth a thorough summary of the evidence in the case, and we quote from it below, with only minor stylistic changes.
“In early August, 2014, Mercy C. left appellant after over 20 years of marriage. She and one of her three children, Laila, aged 11, moved in with her sister, Maria. Mario Marin and Fatima Cota lived next door.
“On August 24, 2014, Mercy and Maria were standing outside Maria’s house with her adult daughter, Stephanie, and Noel, Stephanie’s boyfriend, when appellant arrived. He parked in front of the house. Mercy told everyone to go inside and Stephanie told Mercy to go inside. Appellant exited the car and walked through the metal gate into the front yard. He was angry. He hit Maria, knocking her down as he passed her on the way to Mercy. Mercy told appellant not to hurt Maria, [and] turned and ran. She tripped going up some stairs, landing on her back. Appellant straddled her and pulled out a knife, trying multiple times to stab her. At some point, the tip of the knife broke. Mercy yelled at appellant to stop. Appellant said he was going to kill her. It was because she was having an affair and he could not believe she had cheated on him with Mario, his best friend. Mercy took the threat seriously because she became aware that appellant and Fatima, Mario’s wife, had made plans to kill her.
“Mercy tried to defend herself, but could not get away. Maria, Stephanie, and Stephanie’s boyfriend tried to disarm appellant and pull him off Mercy. Eventually, they succeeded. Appellant got up, entered his vehicle and sped away.
“When police arrived in response to several 911 calls, Mercy and Maria separately told police what happened. Mercy said appellant previously had assaulted her approximately three times, but this incident was the first serious one. She was stabbed in one hand, on one side and on one arm.
“Stephanie’s younger sister, April, who was also at the house, told police she and appellant drove to Mario’s and Fatima’s house a few days before August 24, 2014. Appellant went into the house and came back outside with something wrapped in a white T-shirt. He put the article under the front seat. When they went back to Mercy’s house on August 24, 2014, appellant grabbed the T-shirt from under the seat and put it inside his jeans. When appellant pulled out the T-shirt, April saw a knife, which he used to try to stab Mercy.
“Stephanie also spoke to police. During the interview, Stephanie received a phone call from appellant. Stephanie relayed the conversation to the police and officers drove to appellant’s location. He was arrested without incident.”
The trial court allowed evidence of certain uncharged acts of domestic violence pursuant to Evidence Code section 1109. The uncharged acts included the following incidents, again succinctly described in appellant’s brief on appeal:
“Mercy and appellant got married in Mexico in 1994. At some point in the marriage, appellant started to beat her. He did so frequently.
“Once, before they immigrated to the United States in 1995, Mercy tried to leave appellant. She went to her parents’ house. Appellant followed her and told her she was his wife and had to return to him. When Mercy refused, her father intervened.
“Appellant went back to his car and retrieved an iron bar, restrained Mercy and threatened to hurt her father if she did not leave with him. She did as he asked.
“On August 21, 2007, Mercy called police and reported a domestic violence incident that occurred on July 29, 2007. She told police that she had discovered that the defendant had a girlfriend in Mexico. The two argued and appellant retrieved a knife from the kitchen, grabbed her around the neck with one hand and put the tip of the knife on her shoulder with the other. He told her he would kill her if she called police.
“A few days after appellant’s arrest, Mercy sought dismissal of the charges because appellant’s family pressured her. She believed they would call immigration and have her deported.
“On April 30, 2012, when Mercy and appellant lived in San Rafael, appellant grabbed her by the hair and she fell to the ground. He was drunk. Mercy got up and appellant grabbed her hair again and pulled her down.
“Mercy did not mention the iron bar incident to anyone until February 2, 2016. She did not mention anything about the frequent beatings in Mexico until January 28, 2016.
“On August 16, 2014, appellant grabbed Mercy around the neck and threw her to the ground outside Maria’s house when she refused to talk to him. He asked her about her relationship with Mario and became convinced that the relationship was true. After he left, Mercy called police.”
The defense at trial was that Mercy was lying about the prior incidents of domestic violence, that appellant did not try to stab her, and he did not intend to kill her. Appellant testified on his own behalf. Again we quote from the appellant’s brief regarding the defense case:
“Testifying on his own behalf, appellant admitted that he had affairs during the marriage, which resulted in passionate arguments with Mercy. He never used a knife on her and never touched Mercy in any way.
“Between 2012 and 2014, the marriage became difficult and the couple argued constantly. Appellant lost his business. Despite the money situation, he took Mercy to an immigration attorney and signed a contract for payment of fees. Ultimately, Mercy decided not to pursue it.
“In July, 2014, appellant and Mercy were arguing. She called the police to have him leave. She told the police that appellant hit her. She also told her youngest daughter, Laila, to tell the police that he had hit her. He was not arrested, but Mercy told the police she was going to leave the house. She did so, taking Laila with her.
“When she left, Stephanie told [appellant that] Mercy was having an affair with Mario. He did not believe her because Mario was his good friend.
“After Mercy moved out, appellant wanted to see Laila. He called Mercy to arrange visitation. She said no.
“On August 16, 2014, he went to Maria’s house. He wanted to see Laila. He did not see her, but talked to Mario and Fatima. Mercy arrived while he was there. He asked to see Laila and she told him he would never see Laila again. She tried to slap appellant but fell. When he tried to help her up, she kicked him. She was still on the ground when the police arrived. She told police appellant grabbed her by the throat. He was not arrested.
“On August 24, 2014, he went over to Maria’s house. He was with Stephanie, her boyfriend, and his daughter April. He had a knife with him. He used it to cut wire.
“He planned to wait for Mercy and Laila to arrive so he could make a video for purposes of arranging visitation.
“At approximately 4:30 or 5:00 p.m., Mercy arrived with Mario. He saw them kissing. He felt betrayed by both of them and stupid because he had not believed Stephanie.
“Angry and upset, he grabbed the knife and walked toward the house. He pushed through the gate, knocking Maria down. He started walking toward Mercy, who ran. When she slipped, he stood over her. He asked her how she could have done this to the family, and how she could have betrayed [him] with Mario, who was like a brother to him. He raised the knife over her while she lay on the stairs and stuck it into the floor. The tip broke.
“Appellant was in shock. His head felt hot. He heard people screaming at him. He eventually got up and somebody removed the knife from his hand. He did not want to kill Mercy; he wanted her and his family back.
“Fatima never asked him to kill Mercy. She asked him to look at some videos showing Mario’s and Mercy’s betrayal.
“When contacted by police, appellant lied about the knife.
“Jim Posada, a senior investigator in the DA’s office, interviewed Mario and other neighbors. The other neighbors said Mercy and Mario were in a dating relationship. Posada also interviewed Mercy and Maria multiple times. He did not remember either one saying anything about Mario or about Mercy renting a room from Mario.
“With regard to the August 16, 2014, incident, it was deemed a verbal incident and no report was written.
“When police interviewed Mercy on August 30, 2007, she said she had called to report domestic violence because her husband had found somebody else. She lied to have him arrested. The officer who interviewed Mercy confronted her with her prior statement and she said she would have been killed. He thought she was afraid, but made no note of it in his report.
“Cesar, Mercy’s and appellant’s son, recalled the incident in July, 2007. He recalled his parents arguing because Mercy found out that appellant was cheating on her.
“As of July, 2015, [Cesar] and some of his siblings lived with their mother and Mario at Mario’s house. His mother and Mario slept in the same room. He saw them kissing and Mercy called him “her love.” Mercy told him that Mario was his new father.
“Sometime in 2015, Cesar gave his mother a ride to the San Rafael Police Department. Mercy asked Cesar to request a form to apply for a green card for domestic violence. They filled out the form and paid the necessary fee. He often heard his parents arguing about his mother’s lack of documentation. His father always said they could not afford it.”
The prosecution presented a rebuttal case, summarized in appellant’s brief as follows:
“Cesar asked Stephanie to lie and say appellant did not have a knife.
She refused to do so.
“Between July and August 24, 2014, April saw appellant meet with Fatima on two occasions. Once, Fatima showed him videos. He was angry after viewing them.
“A neighbor heard appellant tell Fatima that he was going to kill Mario if that was that last thing he did.
“Appellant told police that Mercy had the knife and he grabbed it from her. They argued and became physically aggressive. He thought Mercy cut her arm once he left the scene.”
The jury deliberated and returned the following verdicts: on count 2, not guilty of infliction of corporal injury on a former spouse, but guilty of the lesser included offense of attempted infliction of corporal injury on a former spouse, with a true finding on the enhancement for use of a deadly or dangerous weapon; on count 3, guilty of assault with a deadly weapon, with a true finding on the enhancement; on count 4, guilty of criminal threats, with a true finding on the enhancement. The jury was deadlocked on count 1, the attempted murder charge, and a mistrial was declared on that count.
On May 6, 2016, after a lengthy sentencing hearing at which appellant requested to address the court under oath and both counsel addressed the court, appellant was sentenced to four years in state prison on count 3 (assault with a deadly weapon), the aggravated term. He was sentenced to a three-year term on count 4 (criminal threats), also the aggravated term, and a concurrent one-year term on the enhancement to count 4, both to run concurrent to the sentence on count 3. On count 2, attempted corporal injury on a spouse, he was sentenced to two years in state prison (the aggravated term) and a concurrent one-year term on the enhancement to count 2, both stayed pursuant to section 654. Appellant was ordered to pay fines and fees, and given 622 days of actual credit and 622 days of local conduct credit, for a total of 1,244 days credit for time served.
REVIEW
Appellant was at all times represented by competent counsel who very ably protected his interests at the trial and in the many pretrial motions that were litigated in this case.
The jury’s verdict was supported by substantial evidence.
No ruling by the trial court admitting or excluding evidence was an abuse of discretion. The trial court carefully and thoughtfully considered the admissibility of the evidence in this case, including appellant’s prior acts under Evidence Code sections 1109 and 352.
No improper or inappropriate jury instruction was given to the jury.
The sentence imposed was lawful, and the court stated its reasons for imposing the sentence. (Cal. Rules of Court, rule 4.420.)
The fines, fees and assessments appear to have been authorized by statute.
We have reviewed the credits calculations and discern no issues on which we require further briefing.
We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436. The judgment is affirmed.







_________________________
Miller, J.


We concur:


_________________________
Kline, P.J.



_________________________
Stewart, J.