P. v. Ameral

Filed 5/10/06  P. v. Ameral 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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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     A jury convicted defendant Thomas Clark Ameral of making criminal threats (count 1; Pen. Code, § 422; undesignated section references are to the Penal Code) and misdemeanor contempt of court (count 2; § 166, subd. (a)(4)).  In a bifurcated proceeding, the trial court thereafter found defendant had a prior serious felony conviction (§ 667, subd. (a)), which was also a strike (§§ 667, subds. (b)-(i), 1170.12). 

     Defendant contends:  (1) The trial court erred by denying his Wheeler/Batson^[1] motions.  (2) The trial court erred by permitting defendant's impeachment with five prior convictions; alternatively, trial counsel was ineffective for failing to object to the use of four of those convictions.  (3) Defendant's conviction on count 2 must be reversed because the trial court's instruction and the prosecutor's argument could have led the jury to convict on a factually insufficient theory.  (4)  The trial court erred by denying defendant's motion for new trial.  (5) Evidence Code section 1109 (section 1109) is unconstitutional.  (6) The trial court abused its discretion under section 1109 by admitting defendant's three prior acts of domestic violence against the victim.  We shall affirm.

FACTS

     Prosecution case

     Defendant and Leshall Ameral married in 1998 and had three children.  Leshall separated from defendant in or around 2001. 

     On September 18, 2002, the Sacramento County Superior Court issued a protective order, effective until December  18, 2005, stating that defendant â€