P. v. Owens

Filed 5/19/06  P. v. Owens 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County.  Mark Ashton Cope, Judge.  Affirmed with directions.

            Steven A. Torres, 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, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General for Plaintiff and Respondent. 

            A jury found defendant and appellant, Mickie A. Owens, guilty of making criminal threats (Pen. Code, § 422, count 1),^[1] and assault with a deadly weapon or by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2), and domestic battery (§ 243, subd. (e)(1), count 3).  As to count 1, the jury found true the allegation that defendant personally used a deadly and dangerous weapon.  (§§ 12022, subd. (b)(1) and 1192.7, subd. (c)(23).)  In addition, the trial court found true the allegations that defendant had three prior serious felony convictions (§ 667, subd. (a)(1)), and three prior strike convictions.  (§§ 667, subds. (c) and (e)(2)(A) and 1170.12, subd. (c)(2)(A).)  The court sentenced defendant to a total term of 41 years to life in state prison.  The sentence was comprised of a 25-year-to-life term on count 1, plus a consecutive one-year term for the weapon use enhancement, a 25-year-to-life term on count 2, to run concurrent with the term imposed on count 1, and three consecutive five-year terms for each of the prior serious felony convictions.  (The court dismissed count 3 under section 1118.1.) 

            On appeal, defendant argues that:  1) the sentence on count 2 should be stayed pursuant to section 654, as counts 1 and 2 arose from the same incident; and 2) the court abused its discretion when it admitted evidence of defendant's past crimes.  We conclude that the sentence on count 1 should be stayed under section 654.  In all other respects, we affirm.

FACTUAL BACKGROUND

            Officer James Campos's Testimony

            Officer Campos testified at trial that on January 2, 2004, at around 11:00 p.m., he responded to a 911 call.  He met Nelda Owens (the victim) at her neighbor's house.  The victim told the officer that she and her boyfriend, defendant, had gotten into an argument because she failed to pick up some prescription medicine for his stomach pain.  When the victim went to bed that night, defendant followed her into the bedroom, lay down next to her, and punched her in the stomach.  He said he wanted her stomach to burn like his did.  Defendant eventually left the room, and she locked the door.  About 30 minutes later, the door â€