P. v. Tiongson

Filed 6/21/06 P. v. Tiongson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Affirmed.

Janice L. Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant and appellant Danilo Jose Tiongson of six felonies--inflicting corporal injury upon a spouse (count 1, Pen. Code, § 273.5, subd. (a)),^[1] assault with a firearm (counts 2 and 6, § 245, subd. (a)(2)), assault by means of force likely to produce great bodily injury (count 3, § 245, subd. (a)(1)), and making criminal threats (counts 4 and 5, § 422). The jury also found that defendant had personally used a firearm (§ 12022.5, subd. (a)) and that a principal was armed with a firearm in the commission of each of the six offenses. Defendant was sentenced to state prison for a total of 18 years four months.

Defendant raises two contentions in this timely appeal from the judgment. First, defendant argues that CALJIC No. 2.50.02, the pattern instruction on use of prior acts of domestic violence to prove guilt, violated federal due process because it permitted the jury to return guilty verdicts upon a preponderance of the evidence rather than proof beyond a reasonable doubt. Second, defendant contends his conviction for assault by means of force likely to produce great bodily injury in count 3 must be vacated because it is a necessarily included offense of assault with a firearm as charged in count 2. We find no error and affirm the judgment

FACTS

Kathereen Marquez married defendant in 1990 and divorced in 2001. Their relationship was marred by a history of domestic violence by defendant upon Kathereen.^[2] In January 1996, defendant choked Kathereen during an argument. In May 2000, defendant threw a large, empty water bottle at Kathereen. Later in May 2000, defendant pushed Kathereen, causing drinks she was holding to spill on her. In April 2001, defendant punched Kathereen in the lip, causing her to bleed. When defendant was arrested, he threatened to kill Kathereen.

On March 13, 2004, Kathereen lived with her children and mother at 269 West Elm Avenue in Burbank. Defendant was at the apartment visiting the children. Defendant asked Kathereen for half of her tax refund, which she refused. Defendant became angry, went to the living room, and pulled a gun out of his jacket.

Defendant approached Kathereen with the gun as she sat in a chair in the kitchen. Defendant kept Kathereen from getting out of the chair by pressing the gun into her left shoulder with enough force to leave a bruise. Defendant said he was going to kill Kathereen and himself. Kathereen's mother, Aurorita, tried to pull defendant back, but he pushed her into a wall and held Aurorita by the neck with the gun pointed between her eyes. Defendant threatened to kill Aurorita. Defendant's 11-year-old daughter, Kelsey, saw defendant get the gun and aim it at her mother's stomach and between her grandmother's eyebrows.

Kathereen, Aurorita, and Kelsey each explained the details of what occurred to a police officer shortly after the incident.

DISCUSSION

I

CALJIC No. 2.50.02 DOES NOT VIOLATE THE FEDERAL

CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW

Defendant's first argument is that CALJIC No. 2.50.02,^[3] which advises the jury on how to evaluate evidence of prior acts of domestic violence admitted pursuant to Evidence Code section 1109 to prove criminal disposition, violates federal due process. Defendant reasons that the instruction allows a jury to convict based upon evidence proven only by a preponderance of the evidence.

The California Supreme Court has not ruled on the constitutionality of CALJIC No. 2.50.02. Our Supreme Court has, however, rejected an argument identical to that made by defendant in regard to CALJIC No. 2.50.01--the instruction explaining how prior acts of sexual misconduct admitted under Evidence Code section 1108 are to be evaluated in assessing guilt of a defendant. (People v. Reliford (2003) 29 Cal.4th 1007, 1016-1017.) â€