Filed 9/5/17 P. v. Stark CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DWAYNE STARK,

Defendant and Appellant.


E067398

(Super.Ct.No. SWF1402308)

OPINION


APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 29, 2016, an information charged defendant and appellant Dwayne Stark with corporal injury on a cohabitant under Penal Code section 243, subdivision (f)(10), a felony (count 1); and failure to appear under Penal Code section 1320.2, a felony (count 2). On October 5, 2016, a jury found defendant guilty on both counts.
On November 18, 2016, the trial court sentenced defendant to state prison for three years: the middle term of three years for count 1 (cohabitant injury) and the middle term of two years for count 2 (failure to appear), to be served concurrently.
On December 15, 2016, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
1. COUNT 1: COHABITANT INJURY
a) Prosecution Case
As of October 26, 2014, the victim had been romantically involved with defendant for about four months. They lived in separate houses, two blocks apart, but saw each other almost every day. Defendant and the victim had been living together since Christmas of 2014.
On October 25, 2014, defendant lived in a back house behind a residence on Buena Vista Street in Hemet. Defendant and the victim argued; the argument lasted about 30 minutes. Voices were raised but the argument did not become physical.
The victim went to her parents’ house, where she resided, after the argument but returned to defendant’s house in the early morning hours of October 26, 2014. She reached the residence, but before she got to the backhouse, she was jumped by two girls; they grabbed and punched the victim. The victim thought one of the perpetrators was named Lynette; the victim did not know the other perpetrators.
The victim got away, and went to her friends’ house around the corner. The two girls did not chase her. The victim never made it to defendant’s house and did not know if he was home. At her friends’ house, the victim called the police. She told them that she had been jumped at defendant’s house.
The police responded. The victim never told the police that defendant attacked her or that he punched her. She was not sure if she had any injuries at that time. She told the officer that she wanted to retrieve her property from defendant’s house. She slept at her friends’ house and went home early the next morning.
The victim spoke again with the police later that day. The police came to her parents’ house to see if she had retrieved her property. The victim had a black eye and a bruise on her arm. She told the officer that she suffered these injuries when she was jumped. She did not recall telling the officer that defendant caused her injuries. She did recall telling the officer that she wanted charges pressed against defendant. The victim’s parents and her friend were there.
The next time she saw defendant was about two weeks later. She did not communicate with him in the interim.
The victim’s 911 call was played for the jury. She did not mention anything about being jumped by two girls. The only person she mentioned assaulting her was defendant. She said, “‘He beat me up.’” She told the 911 operator that defendant assaulted her because she was angry and upset at him.
On a later date, the victim went to the police station and made an additional statement that two girls had jumped her. Defendant did not assault her and she blamed him because she was jumped on the property defendant was renting.
At the preliminary hearing the victim had testified that defendant did not touch her. A woman named Anita Barnes assaulted her; she and Anita were arguing about an eviction. During an interview on August 24, 2016, with Joe Phillips, a defense investigator, the victim also told him that Barnes was the one who had attacked her but Barnes had since passed away.
The victim testified that she did not remember what she told the defense investigator. She realized some time in 2015 that Barnes could not have assaulted her because her assailant was taller than Barnes; she was confused at the time because Barnes wore wigs.
Phillips did not recall the victim mentioning anyone named Lynette as a possible assailant. To Phillips, the victim denied that she told the police defendant had hit her. She said that she told the officer the girls had jumped her.
Hemet Police Officer Matthew Gomez responded to the victim’s initial call around 4:45 a.m. on the morning of October 26, 2014. She told Gomez that defendant had just assaulted her; she had been in an argument with defendant and that he grabbed her by the hair, punched her on the right side of her face, and aggressively grabbed her left arm. She complained of pain from her injuries but did not want medical attention. She did not want to press charges. She wanted her computer back. She did not mention being jumped by two women or any desire to prosecute the owner of the property where the attack occurred.
At around 7:16 p.m. that evening, she called again, and Officer Gomez responded this time to her parents’ home. The victim’s right eye was black, she had some bruising on her left arm and a small bruise on her chest. She said she got the bruise on her left arm from defendant grabbing her and that the bruise on her chest occurred during the attack as well. As before, she did not say that she got the injuries from being jumped by two women. This time, the victim said that she wanted defendant prosecuted. Since the victim now had visible injuries, and the crime had elevated to a felony, Officer Gomez attempted to interview defendant after this second call. He was not successful in interviewing defendant at that time.
b) Defense Case
Sharon Howland had known the victim and defendant for five years. She saw defendant around 2:00 a.m. on October 26, 2014, at his house. She did not see the victim there. She went with defendant and Ray Torre to Soboba Casino. Howland took a separate car; defendant and Torre drove in Torre’s truck. They arrived at the casino at 2:30 a.m. Howland left at 5:30 a.m., before Torre and defendant. After dropping off a friend, she arrived back at defendant’s house between 5:45 and 6:00 a.m.; the police were there.
Howland saw her friend/defendant’s cousin, Renee, getting into her car. Renee told Howland the victim had been attacked.
The victim was in the back house cleaning. She appeared disheveled and shaken. Howland did not see any injuries on the victim because the victim would not look at Howland. Howland and the victim cooked breakfast. Defendant and Torre “walked in” at 7:00 a.m. and they all had breakfast together. During breakfast Howland did not notice any injuries; the victim had her hair partially covering her face and she was wearing a long-sleeved sweatshirt. Howland asked the victim what happened; the victim did not want to talk about it.
Later that afternoon, Howland saw the victim again at the victim’s parent’s house. The police were there. The victim was at the door of the police car. One of the officers was taking photographs of her. Howland did not see any injuries on the victim’s face because the victim did not turn her face toward Howland. Howland never went into the victim’s house; she stayed in her car and then left.
Howland did not seek out and volunteer the information to the police that she was with defendant the night of the attack, and could provide potentially exculpatory evidence for defendant, until August 2016.
Ray Torre considered defendant his little brother. He, Sharon Howland and defendant went to Soboba casino to gamble. Howland took a separate car and she left before he and defendant did. When Torre and defendant arrived back at defendant’s house, the victim and Howland were in the kitchen cooking breakfast. The victim looked like something was not right, but she did not want to talk about it. Torre did not see any injuries on the victim. He could not see her face because she was always facing away from him. The four of them ate breakfast together. Defendant fell asleep; Torre and Howland left around 8:00 a.m.
Torres did not seek out and volunteer the information to the police that he was with defendant at the time of the attack, and could provide potentially exculpatory evidence for defendant. He was interviewed for the first time regarding his knowledge in September 2016.
2. COUNT 2: FAILURE TO APPEAR
The parties stipulated as follows: “On April 5th, 2016, the court ordered the defendant to appear on March 3rd, 2016, for a felony settlement conference in Department S204. On May 3rd, 2016, the defendant did not appear for his court-ordered appearance. On May 3rd, 2016, the defendant added himself to calendar to appear on May 12, 2016. On May 12, 2016, the defendant appeared in court but left the courtroom before his case was called. On May 12, 2016, the defendant added himself to calendar to appear on May 26, 2016. The defendant next appeared in court on June 14, 2016.”
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


SLOUGH
J.


FIELDS
J.