P. v. Spence

Filed 8/24/06 P. v. Spence 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Tulare County. Manuel Rose, Jr., Judge.

Paul V. Carroll, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Eddie Carl Spence was convicted of felony criminal threats and misdemeanor assault, based on an assault upon the mother of his child. He was sentenced to a third strike term. On appeal, he challenges his conviction for felony criminal threats, and argues there is insufficient evidence the threat was unconditional or the victim was in sustained fear. We will affirm.

STATEMENT OF THE CASE

On November 3, 2003, an amended information was filed in the Superior Court of Tulare County charging appellant with count I, infliction of corporal injury to a spouse or cohabitant (Pen. Code,^[1] § 273.5, subd. (a)), and count II, terrorist threats (§ 422). As to count I, it was alleged appellant suffered three prior serious and/or violent felony convictions (§ 1170.12), and served one prior prison term (§ 667.5, subd. (b)). As to count II, it was alleged appellant suffered one prior serious felony conviction (§ 667, subd. (a)), three prior strike convictions, served one prior prison term, and suffered two felony convictions rendering him ineligible for parole, within the meaning of section 1203, subdivision (e)(4). Appellant pleaded not guilty and denied the special allegations.

On November 17, 2003, appellant's jury trial began. On November 20, 2003, the jury found appellant not guilty of count I, infliction of corporal injury to a spouse or cohabitant, but guilty of assault (§ 240) as a lesser offense; and guilty of count II, terrorist threats. Thereafter, a bifurcated jury trial was held on the special allegations, and the jury found all special allegations true.

On February 25, 2004, the court granted appellant's motion pursuant to People v. Marsden (1970) 2 Cal.3d 188, and appointed new counsel. On April 15, 2004, appellant filed a motion for new trial, and argued trial counsel was prejudicially ineffective for failing to call two material witnesses who would have testified about the victim's reputation and appellant's serious back injury, and such evidence would have been relevant and probative as to the domestic violence charges. In the alternative, appellant requested the court to reduce his felony conviction in count II to a misdemeanor.

On April 30, 2004, the court conducted a hearing on appellant's new trial motion, found trial counsel was prejudicially ineffective for failing to present the two witnesses, and that such evidence would have been probative of appellant's intent in committing the charged acts. The court granted appellant's motion for new trial, denied appellant's motion to reduce count II to a misdemeanor, and reset the matter.

On June 4, 2004, a second amended information was filed, charging appellant with count I, felony criminal threats (§ 422), and count II, misdemeanor assault (§ 240). As to count I, it was alleged appellant suffered one prior strike conviction, one prior serious felony conviction, served one prior prison term, and suffered two prior felony convictions rendering him ineligible for parole. Appellant pleaded not guilty and denied the special allegations.

On September 20, 2004, appellant's jury trial began, and appellant stipulated to the truth of the special allegations. On September 22, 2004, appellant was convicted of both counts.

On December 15, 2004, the court denied appellant's motion to dismiss the prior strike conviction, and imposed the third strike term of 25 years to life for count I, with a consecutive term of five years for the prior serious felony enhancement, and one year for the prior prison term enhancement, for an aggregate term of 31 years to life.

On July 20, 2005, appellant filed a notice of appeal deemed timely by this court.

FACTS

In July 2002, S.M. met appellant. S.M. had two young children. Appellant moved in with S.M. and her children in September or October 2002, and their daughter was born in May 2003. As of August 2003, the couple and the three children lived in an apartment in Visalia. At that time, appellant and S.M. were having financial problems, they did not have much money, and they were going to have to move out of their apartment. S.M. testified appellant suffered from a bulging disc in his back, which was very hard on him and made him moody and depressed. Appellant was â€