P. v. Spangle

Filed 4/13/06 P. v. Spangle CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Stephen H. Ashworth, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, Ronald A. Jakob and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of resisting an officer in the performance of his duty, in violation of Penal Code section 69.^[1] The court sentenced defendant to four years four months. The sentence included terms for the current case and for two other cases in which defendant's probation was revoked based on his commission of the current offense.

Defendant contends (1) the evidence was insufficient; (2) the court should not have given CALJIC No. 2.21.2; and (3) the court should have reduced the conviction to a misdemeanor. We affirm the judgment.

I

FACTS

A. Prosecution Case^[2]

1. Defendant's violation of the restraining order

Defendant and Velinda Gonzalez were married in 1991 and had several children together. In July 2004, Gonzalez got a domestic violence restraining order against defendant. The order was effective for three years. It required that defendant stay at least 150 yards from Gonzalez and the children.

On October 2004, Gonzalez made a report to the San Bernardino County Sheriff's Department about an incident involving her and defendant that day. She spoke with Deputy Arreola and showed him a copy of the restraining order.

Defendant got out of jail on December 17, 2004. With Gonzalez's consent, defendant came to her house and stayed there until December 21, 2004. Gonzalez had no objection to his being there on those days, because he was not violent on those days. However, sometime before December 21 she asked defendant to leave. Defendant said he would go to his mother's, but he did not leave.

On December 21, 2004, Gonzalez returned home from work. Defendant was at the house. He said he was there to visit his children. He had not contacted Gonzalez beforehand to ask if it was okay for him to be there.

Gonzalez left to attend a Christmas party, without telling defendant to leave. When she got back, defendant was still there. About 45 minutes later, defendant and Gonzalez got into an argument when she refused to give him money for beer. Defendant became angry, yelling and using profanity. Gonzalez asked him to leave. Defendant said he didn't have any â€