P. v. Wooten

Filed 7/19/06 P. v. Wooten CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEALS from judgments of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant James W. Wooten was convicted after consolidated jury trial of two counts of corporal injury to a spouse or cohabitant, witness intimidation by force or threat, false imprisonment by violence and making a criminal threat. He admitted an on-bail enhancement allegation. (Pen. Code, §§ 273.5, subd. (a), 136.1, subd. (c)(1), 236, 422, 12022.1.)^[1] He was sentenced to an aggregate term of six years' imprisonment. A restitution fine and a suspended parole revocation fine were imposed for each case; the aggregate total of the two restitution fines is $1,200 and the aggregate total of the two parole revocation fines is $1,200. The on-bail enhancement was not imposed or dismissed.

Appellant challenges the sufficiency of the evidence supporting the felony witness intimidation conviction and argues the court had a sua sponte duty to instruct on the lesser included offense of misdemeanor witness intimidation. He also challenges inclusion of CALJIC No. 2.04 in the jury charge. Next, he argues the prosecutor engaged in misconduct. Finally, he contends imposition of multiple restitution and multiple parole revocation fines is forbidden in consolidated cases. Respondent raises an additional issue, arguing the court erred by failing to impose or dismiss the on-bail enhancement. Although none of appellant's arguments are convincing, we agree with respondent that failure to impose or strike the on-bail enhancement resulted in an unauthorized sentence that must be corrected on remand.

FACTS

I. Prosecution Evidence

A. April 19th incident (giving rise to count I -- spousal abuse)

Romina P. testified that she has one daughter, Gabrielle, who was 17 years old when trial commenced. Romina met appellant in May 2003 and began dating him in August 2003. At that time, she believed he was single. A few months later, she learned he was married and had children, but was in the process of a divorce. Romina continued to date appellant.

Romina testified that she and Gabrielle went to appellant's residence on the evening of April 19, 2004.^[2] Appellant and his mother, Cornelia Walling, were at the residence when they arrived. Romina and Walling began cleaning the residence. Appellant and Gabrielle sat in the living area. About two or three hours later, Romina discovered that appellant and Gabrielle were not in the living area any longer. She opened the front door and called out for them to come inside.

A few minutes later, Romina saw that appellant and Gabrielle had returned. She asked them where they had gone. They replied that they had been in the house â€