P. v. Reed

Filed 8/25/06 P. v. Reed CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Tara K. Allen, 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, Daniel B. Bernstein, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Involved in an altercation with a former girlfriend, defendant Jackie Ray Reed appeals from a conviction of inflicting corporal injury on a former cohabitant. Defendant argues that there was insufficient evidence to establish that he was a former cohabitant of the victim. He additionally argues that his sentence was improper under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We conclude that the evidence was sufficient to establish that defendant and his victim were former cohabitants. The California Supreme Court has rejected defendant's position regarding Blakely. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

On February 18, 2005, the victim, defendant's former girlfriend, was living in a camper-trailer located on residential property occupied by defendant's brother and wife. At approximately 7:30 p.m., defendant entered the camper-trailer and attacked the victim, hitting her in the face and beating her with his fists. The victim, after escaping the attack, ran to the main house on the property and called 911. Defendant was arrested and charged in count one with inflicting corporal injury on a former cohabitant (Pen. Code, § 273.5, subd. (a))^[1] and in count two with threatening to commit a crime that would result in death or great bodily injury (§ 422).

At trial, the victim testified that she met defendant in 1979 or 1980 and became romantically involved with him in the early 1980's. According to her testimony, she lived with the defendant from 1987 to 1992 and during this time they had sexual relations. After 1998, when she was diagnosed with cancer, she maintained only a platonic relationship with defendant.

The jury deadlocked on count two, but defendant was convicted of count one, inflicting corporal injury on a former cohabitant. The trial court sentenced defendant to the upper term of four years in state prison.

DISCUSSION

I. Sufficient Evidence

Defendant argues that there is insufficient evidence of former cohabitation within the meaning and intent of section 273.5, subdivision (a). â€