P. v. Froemel

Filed 2/27/06 P. v. Froemel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Rocky Devon Froemel was accused of assault with a deadly weapon against Shannon Capurro (Pen. Code, § 245, subd. (a)(1); undesignated section references are to the Penal Code; count 1); making criminal threats against Capurro (§ 422; count 2); attempting to prevent or dissuade Capurro from causing a crime to be prosecuted and assisting in its prosecution (§ 136.1, subd. (b)(2); count 3); and attempting to prevent or dissuade Capurro from testifying (§ 136.1, subd. (a)(2); count 4). In addition, he was accused of having four prior convictions for assault with a deadly weapon, serious felonies that counted as strikes (§§ 667, subds. (a), (b)-(i), 1170.12).

On motion by the prosecution, the trial court dismissed counts 1 and 2 before trial. A jury thereafter convicted defendant on the former counts 3 (attempting to prevent or dissuade Capurro from causing a crime to be prosecuted and assisting in its prosecution) and 4 (attempting to prevent or dissuade Capurro from testifying), renumbered counts 1 and 2. Defendant then waived court trial of the priors and admitted them.

The trial court granted defendant's motion to strike one prior strike (§ 1385), then sentenced him to 16 years in state prison (the upper term on count 1, doubled under Three Strikes, plus two five-year enhancements for the serious felony convictions, with sentence on count 2 stayed).

Defendant contends: (1) Insufficient evidence supports his conviction on count 2. (2) Trial counsel was ineffective for failing to request a limiting instruction as to a letter introduced in evidence. (3) The trial court erred reversibly by ordering incomplete disclosure of material potentially favorable to defendant's case. (4) The imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).) We shall affirm.

FACTS

Capurro, the victim, is the developmentally disabled adult daughter of Della Hamilton (defendant's girlfriend when the alleged crimes began, his wife by the time of trial). Capurro has a daughter who was five years old in 2004. Beginning in March 2004, Capurro received assistance from Training Towards Self-Reliance (TTSR); her social worker was Rachel Frederick.

Defendant and Hamilton moved in with Capurro in late March 2004. In early April, Capurro filed a police report about an incident in which defendant allegedly pulled a knife on her. (This alleged conduct gave rise to the original counts 1 and 2, later dismissed.)

Capurro notified Frederick about the situation. TTSR placed Capurro and her daughter in emergency housing at the Econo Lodge motel in downtown Sacramento. On April 19, 2004, the police arrested defendant and informed Capurro of the arrest.

Beginning on the date of his arrest, defendant made numerous telephone calls to Hamilton from jail, which were recorded by the jail authorities. The recordings were played at trial, and the jury received transcripts.^[1]

In the first call, made within a few hours of defendant's arrest, he told Hamilton: â€