Filed 8/23/17 P. v. Dunahoo 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Mono)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS DUNAHOO,

Defendant and Appellant.


C079857

(Super. Ct. Nos. MFE13003276, MFE15000140)


Defendant Nicholas Dunahoo was convicted of charges related to a domestic violence incident against his girlfriend. He contends (1) the trial court erroneously instructed the jury regarding evidence of uncharged domestic violence, and (2) the trial court erroneously believed it did not have discretion to impose anything but the upper term sentence for count 1 in case No. MFE15000140. We conclude there was no prejudicial error in giving the jury instruction on evidence of uncharged domestic violence and the trial court exercised its discretion in imposing the upper term for count 1. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. MFE13003276 (Riverside Case No. BAF007079)
In September 2009, defendant’s car was parked behind and blocking the car of Kate C., his brother’s girlfriend. Kate asked defendant to move his car, but defendant refused and used a crowbar to smash the windows of Kate’s car. The glass shattered and hit both Kate and her four-year-old son, who were both in the car. Both suffered minor cuts to their heads, legs, and arms. Defendant told Kate he wished her twins were also in the car when he smashed the windows.
Defendant pleaded guilty to two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ; counts 1-2) and felony vandalism (§ 594, subd. (b)(1); count 3). The trial court granted him three years’ probation. Defendant’s case was transferred to Mono County in June 2013. Defendant was found to be in violation of probation in October 2014. As of January 2015, two additional probation violation allegations had been filed, including an allegation for his arrest in case No. MFE15000140.
Case No. MFE15000140
Defendant and I.C. began dating in 2012. They lived together for six months and then started arguing constantly. After one long argument in 2012, I.C. drove away in her car. When she returned home later that day, defendant grabbed her keys and cell phone, locked her car, and went inside their house and locked her out. I.C. went across the street to a friend’s house. Later, as I.C. was outside walking to a friend’s house, defendant approached and grabbed her arm. I.C.’s mother called the police, who helped her retrieve some of her belongings from the house. When I.C. went back to the house the next day, her remaining belongings had been destroyed, including her clothing. I.C. moved out and she and defendant broke up.
Two months later, I.C. and defendant got back together. Although they were not living together, I.C. would occasionally stay the night. They started fighting again and broke up in January 2013, although defendant continued calling I.C. his girlfriend. Defendant moved to Santa Cruz and the two maintained a friendly relationship and spoke daily.
Defendant returned to Mono County in October 2014. At the time, I.C. was living with her mother, and defendant began staying in their living room. I.C. and defendant resumed a romantic relationship. In December 2014, defendant and I.C. had an argument. Defendant began screaming at her within two inches of her face, and I.C. pushed him away. Defendant came back toward her, and I.C. again pushed him away. Defendant again came toward I.C. and grabbed her by the shoulders. The two fell to the ground, with defendant on top of I.C. Defendant continued grabbing her arms and shoulders, and I.C. “freaked out” and began kicking to get him off her. Both their glasses were knocked off, and the two remained on the ground for five minutes. Defendant finally got up when I.C.’s mother walked in on them. Defendant and I.C. each separately called the police. Defendant was arrested.
While defendant was in custody, he spoke with I.C. over the telephone. The two argued and I.C. said he was sick in the head. Defendant replied, “I’ll show you how sick I can be,” and said he would “cause more trouble” when he was released. I.C. said he was being stupid, and defendant replied, “I’m going to show you how stupid I can be.” I.C. interpreted these statements as threats, especially since defendant is “a man of his word” who does not make empty promises and always follows through on his statements. I.C. was aware of an incident between defendant and his brother’s girlfriend. Defendant thought his brother had stolen some of his things and threatened the girlfriend in an effort to get her to call his brother. When the girlfriend refused to call, defendant started attacking her and smashed all her car windows with a crowbar while she and her child were still inside.
When defendant was released, he continued living with I.C. and her mother for two weeks. I.C. was secretly looking for her own place to live. She found an apartment and moved in at the end of December 2014, with defendant’s help. To avoid having defendant continue to stay at her mother’s house, I.C. decided to let him stay temporarily in her apartment. Defendant made a copy of the apartment key for himself and opened the electricity account in his name, so I.C. would not have to pay a $200 new account deposit. I.C. paid the electricity bill and all the other apartment expenses, including rent and the initial deposit, and the lease was in her name only.
On January 6, 2015, defendant and I.C. had been arguing and making plans for defendant to move out. Although defendant planned to leave, he also said he did not want to leave because the apartment was his. At 2:30 p.m., I.C. smoked marijuana, which she did every day for medical reasons. At 3:30 p.m., I.C. left for a friend’s house. She smoked more marijuana at her friend’s house at 10:00 p.m.
I.C. no longer felt high when she returned to the apartment at 2:30 a.m. the next day. She lit a fire, ate a snack, brushed her teeth, and then went to the bedroom upstairs. She found defendant asleep in her bed, so she returned to the living room downstairs to sleep on the couch. Two minutes later, defendant came down the stairs, yelling and screaming that she had no respect for him. Defendant opened the chimney doors and went to the kitchen, where he turned on the fans and a light, and pulled a knife from a drawer. According to I.C., respect is “a big deal” to defendant. It was common for defendant to tell I.C. she was not respecting him, and the words “respect me” are tattooed on his chest. Defendant pointed the knife at I.C. and continued to yell and scream at her. He threatened to go upstairs and “rip [her things] apart” and then “come back downstairs [and] stab you a hundred times or more until I get tired.” I.C. was scared and believed him, especially since defendant seemed angry and he “does what he says he’s going to do.” I.C. told defendant to put the knife down, but defendant continued approaching and aimed the knife at her torso in a stabbing motion. I.C. grabbed at the knife and defendant’s hand, and defendant grabbed her arm and shoulder. The two wrestled for 10 to 15 minutes, with defendant aiming the knife at I.C.’s thighs. Defendant grabbed I.C. by the neck with a “good grip,” although she could still breathe. They paused for a minute and I.C. again asked defendant to put down the knife. Defendant refused and came at her again, continuing to try to stab her thighs with the knife. Defendant finally let go and went upstairs. I.C. grabbed her clothes and put them on, ran to her mother’s house, and called 911. Defendant was still holding the knife as she left.
As a result of the fight, I.C. suffered cuts on her hands, and her face and neck were red and her neck was sore. The police took photos of I.C.’s bloody hands and her red face and neck that were shown to the jury at trial. At trial, the police officer testified he did not find any blood on I.C.’s clothes, in the apartment, or on the knife, although he did not inspect the clothes and only “looked around” at the apartment.
At trial, I.C. testified she erroneously told the 911 operator certain things about the incident. For example, immediately after the incident, she was unsure of her injuries, so she said defendant had stabbed her in the arm and the hand. In addition, I.C. told the 911 operator she had injured her legs during the fight, but at trial she testified those injuries were from New Year’s Eve, when she stepped in front of her friend’s car to stop the friend from driving drunk and the friend ran over her leg with the car. She also told the 911 operator defendant was “ripping up [her] stuff,” but he did not do so. I.C. also told the 911 operator defendant did not have a key to the apartment, but she clarified in her statement to police that defendant had moved in with her and made a spare key. I.C. also clarified for the police that defendant did not have permission to live in the apartment at the time of the incident because the previous afternoon she had told defendant he had to get out.
At trial, the court instructed the jury over defense objection with a modified version of CALCRIM No. 852: “Evidence of uncharged domestic violence. The People presented evidence that the Defendant committed domestic violence that was not charged in this case, specifically grabbing [I.C.]’s arm in 2012 and a fight in December 2014. Domestic violence means abuse committed against an adult who is a former cohabitant or person who dated or is dating the defendant. You may consider this evidence only if the People have proved it by a preponderance of the evidence that the Defendant, in fact, committed the uncharged domestic violence. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the Defendant committed the uncharged domestic violence you may, but are not required to, conclude from that evidence that the Defendant was disposed or inclined to commit domestic violence, and based on that decision also conclude that the Defendant was likely to commit a violation of [section 273.5] as charged in Count Three. [¶] If you conclude that the Defendant committed the uncharged domestic violence, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that the Defendant is guilty of [section 273.5]. The People must still prove that charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
A jury convicted defendant of assault with a deadly weapon (§ 245, subd. (a)(1); count I), criminal threats (§ 422; count II), and corporal injury to a spouse or cohabitant (§ 273.5, subd. (a); count III).
During the sentencing hearing for case Nos. MFE13003276 and MFE15000140, defendant argued the upper term was inappropriate for count 1 in case No. MFE15000140 because the crime was no more serious than other assaults and I.C. only suffered minor injuries. The trial court agreed the offense was not “any[ more] serious than any other [section 245, subdivision (a)],” but reasoned that circumstance “really goes to probation and not circumstances in aggravation.” The trial court found there were no circumstances in mitigation, but there were multiple circumstances in aggravation: (1) defendant has engaged in violent conduct indicating a serious danger to society; (2) defendant’s prior convictions as an adult are numerous and have increasing seriousness; (3) defendant was on probation when the crime was committed; and (4) defendant’s prior performance on probation was unsatisfactory. (Cal. Rules of Court, rules 4.421(b)(1)-(2), (4)-(5), 4.423, 4.408.) It reasoned: “So the Court is required, under the Rules of Court, to impose the upper term, which was recommended by the Probation Department.”
The trial court sentenced defendant in case No. MFE15000140 to serve four years in prison for count 1 (the upper term), three years for count 2, concurrent, and four years for count 3, stayed. (§§ 245, subd. (a)(1), 422, 654.)
The trial court sentenced defendant in case No. MFE13003276 to serve a term in state prison of one year, as follows: one year for count 1 (§ 245, subd. (a)(1)), three years for count 2 (§ 245, subd. (a)(1), concurrent to case No. MFE15000140 and count 1 in case No. MFE13003276, and two years for count 3 (§ 594, subd. (b)(1)), concurrent to case No. MFE15000140 and all counts in case No. MFE13003276.
In August 2015, we granted defendant’s request for permission to file a notice of appeal under the constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72.
DISCUSSION
I
Jury Instruction on Evidence of Uncharged Domestic Violence
Defendant contends the trial court erred in instructing the jury with the modified version of CALCRIM No. 852. According to defendant, by saying, “The People presented evidence that the Defendant committed domestic violence that was not charged in this case,” the instruction affirmatively told jurors that defendant’s 2012 and December 2014 altercations with I.C. constituted domestic violence under Evidence Code section 1109. In addition, defendant contends the instruction failed to properly define domestic violence because it did not include the following definition of “abuse” provided in CALCRIM No. 852: “Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.” According to defendant, a properly instructed jury would have concluded the prior uncharged incidents were not domestic violence because there was no evidence defendant attempted or intended to cause I.C. injury or place her in fear. Defendant further contends the instruction was prejudicial error because the case was close and the prosecution’s burden was lowered by the otherwise nonqualifying propensity evidence. We conclude there was no prejudicial error.
Contrary to defendant’s contentions, a statement in an instruction that the People have presented evidence of a crime does not direct the jury to find the crime existed. (People v. Williams (2008) 161 Cal.App.4th 705, 709-710.) Moreover, the instruction continued: “You may consider this evidence only if the People have proved it by a preponderance of the evidence that the Defendant, in fact, committed the uncharged domestic violence.” Accordingly, the trial court did leave it to the jury to determine whether the 2012 and 2014 incidents between I.C. and defendant were true and whether they constituted domestic violence.
To the extent the trial court erred by not defining “abuse,” any error was harmless under either the Chapman or Watson standards of prejudice because, even if the jury found the 2012 and 2014 incidents were acts of domestic violence, this finding was insufficient to find defendant guilty of the charged offenses. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.) The trial court properly instructed the jury as to the limited use of such propensity evidence, explaining that, if the jury found defendant committed the uncharged acts, it could, but was not required to conclude defendant was (a) disposed to commit domestic violence or (b) likely to violate section 273.5. The instruction also properly explained the uncharged domestic violence was only one factor to consider and was insufficient by itself to prove defendant was guilty of section 273.5 (corporal injury to a spouse or cohabitant). In addition, the instruction properly reiterated the People still had the burden to prove count 3 (corporal injury to a spouse or cohabitant) beyond a reasonable doubt, and the jury could not consider the evidence for any other purpose. (See People v. Reyes (2008) 160 Cal.App.4th 246, 252.)
Moreover, the record belies defendant’s view this was a close case because I.C.’s testimony was uncontroverted. Defendant points to inconsistencies between I.C.’s testimony and her statements to the 911 operator and police, including whether defendant had stabbed her in the arm, how defendant got a key to the apartment, whether defendant had permission to be in the apartment, and the cause of bruises on her legs. In addition, defendant points to the “moderate” amount of blood on I.C.’s hands in the photographs taken shortly after the incident and the police’s failure to find blood on I.C.’s clothes, in I.C.’s apartment, or on the knife. Defense counsel brought these inconsistencies to the jury’s attention during trial, and the jury resolved them in the prosecution’s favor.
Based on the record, we conclude there was no prejudicial error.
II
Upper Term Sentence on Count 1
Relying on the trial court’s statement it was “required” to impose the upper term on count 1 in case No. MFE15000140, defendant contends the trial court erroneously believed it did not have discretion to impose a sentence less than the upper term. According to defendant, it is reasonably probable the trial court would have imposed a midterm sentence had it not been mistaken about its discretion because this was not an egregious case of assault with a deadly weapon. We are not persuaded.
A trial court is afforded “broad discretion” in sentencing decisions. (People v. Sandoval (2007) 41 Cal.4th 825, 847; see also § 1170, subd. (b) [“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”].) The trial court’s discretion “must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (Sandoval, at p. 847.) An upper term sentence may be based upon “any aggravating circumstance that the court deems significant . . . [and] ‘reasonably related to the decision being made.’ ” (Id. at p. 848, quoting rule 4.408(a).) A single valid factor is enough to justify imposition of an aggravated term. (People v. Black (2007) 41 Cal.4th 799, 813; Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856].)
Even though the trial court said it considered itself “required” to impose the upper term, it did so in the context of finding no circumstances in mitigation and multiple circumstances in aggravation, including: (1) defendant has engaged in violent conduct indicating a serious danger to society; (2) defendant’s prior convictions as an adult are numerous and have increasing seriousness; (3) defendant was on probation when the crime was committed; and (4) defendant’s prior performance on probation was unsatisfactory. In addition, the trial court considered defendant’s argument that a lesser term was appropriate because the offense was no more serious than any other assault with a deadly weapon and concluded this circumstance “really goes to probation and not circumstances in aggravation.” Based on the record, we conclude the trial court weighed the potentially aggravating and mitigating circumstances and exercised its discretion to impose the upper term.
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
MURRAY, J.