P. v. Calixio

Filed 7/19/06 P. v. Calixio 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

Rex A. Williams, 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, Stan Cross and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

On June 6, 2004, appellant Pedro Ramirez Calixio fatally stabbed Luis Fernando Carrillo. Appellant was convicted after jury trial of voluntary manslaughter as a lesser included offense to the charged crime of murder; the jury found true a special allegation that he personally used a knife in the commission of the homicide. (Pen. Code, §§ 192, subd. (a), 12022, subd. (b)(1).)^[1] Appellant was sentenced to 12 years' imprisonment, calculated as the upper term of 11 years' for manslaughter plus a consecutive one year term for the weapon use enhancement.

Appellant argues that the court prejudicially erred by admitting a prior spousal battery conviction as impeachment evidence. He also raises a Blakely challenge to judicial selection of the upper term.^[2] Neither argument is persuasive; we will affirm.

FACTS

I. Assault on evening of June 5

Juan and Martin Garcia lived with their sister, Maria, and Maria's family in a house located on South Sunset Street in Reedley. During the evening of June 5, Juan, Martin, Carrillo, appellant, and a friend of appellant were drinking beer in the front yard of this house. When the group ran out of beer, appellant gave Carrillo some money to buy two 12 packs of beer at a nearby market. When Carrillo returned with the beer, they resumed drinking.

Around 10:00 or 11:00 p.m., appellant and Martin started fighting. Martin eventually landed on top of appellant on the sidewalk, where he started beating appellant on the face. Juan and Carrillo broke up the fight. Appellant took a pocket knife out of his pants, handed it to Juan and told him to stab Martin. Juan refused and threw the knife on the ground in front of the house.

Maria came outside and told Juan and Martin that she had called the police. At her insistence, they went inside the house. Carrillo walked toward the house as well. Appellant and his friend remained outside.

Juan testified that he did not take any money from appellant and he did not see Carrillo take any money from appellant (other than the money appellant gave him to purchase beer).

Around 12:30 a.m. on June 6, Reedley Police Officer Juan Jose Saenz observed appellant and another man standing on the corner of South Sunset and East Early Avenues. Appellant's face was covered with blood and he appeared to be intoxicated. Appellant's friend was extremely intoxicated and unable to stand without assistance. Appellant identified himself to the officer as Pedro Ramirez. He told Saenz that he and his friend had been approached by three Sureno gang members. One of the gang members pointed a knife at appellant and demanded his money. Appellant described the knife as a black folding knife with an American flag on it. When appellant told the gang members that he did not have any money, the two unarmed gang members began striking him in the face. One of them reached into appellant's wallet and took out $150. Appellant told Saenz that he could identify the gang members. He said that one of the men who took his money lived â€