Filed 10/29/18 P. v. Miguel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JOSE SAN MIGUEL, Defendant and Appellant.

H045205 (Santa Clara County Super. Ct. No. C1518653)

Defendant Jose San Miguel appeals from the judgment entered after a jury found him guilty of one felony count of inflicting injury upon his former cohabitant, D.C.,[1] and two misdemeanor counts of violating a court order. The trial court found that San Miguel had suffered a prior strike conviction and denied his request to dismiss the strike prior. The court imposed the midterm sentence of three years on the felony count, doubled for the strike prior, for a total prison term of six years. The court also imposed 60 days in county jail for the two misdemeanor counts, which had been satisfied by time served.

San Miguel’s appointed appellate counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). San Miguel was advised by counsel of his right to submit written argument on his own behalf within 30 days of the date of filing of the opening brief. That time has elapsed, and we have received no communication from him.

We have conducted an independent review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 and have found no arguable appellate issues. We will provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.)

Factual and Procedural Background

A. Charges

In August 2015, the Santa Clara County District Attorney filed a felony complaint charging San Miguel with one felony count of inflicting corporal injury resulting in a traumatic condition upon D.C., with whom he had a dating relationship, on or about July 17, 2015, within seven years of a previous conviction of domestic battery, in violation of Penal Code section 273.5, subdivision (f)(2)[2] (count 1), and two misdemeanor counts of violating a protective order, on or about July 17, 2015 and August 4, 2015, in violation of section 273.6, subdivision (a) (counts 2 & 3). The complaint also alleged that San Miguel had a prior strike conviction within the meaning of section 667, subdivisions (b) to (i), and section 1170.12.

D.C. testified at the preliminary hearing. She described dating San Miguel; being homeless and using methamphetamine together; an incident in July 2015 when he beat her with a large, metal flashlight while she was in his truck, causing cuts and bruising which made it difficult for her to walk; another incident in August 2015 in which he found her in the park with a male friend and chased her back to the apartment of her brother-in-law, who let her in and called the police; and other instances in which he was violent with her.

The trial court held San Miguel to answer the charges in the complaint. On September 23, 2016, the district attorney filed an information charging San Miguel with the same charges alleged in the complaint. He pleaded not guilty and the case was set for trial.

B. Trial

1. Motions in Limine

A jury trial began on November 30, 2016. The trial court considered motions in limine and pretrial motions filed by both sides. The court granted San Miguel’s motion to bifurcate the trial on the strike prior. It ruled to allow limited scope questioning on the subject of methamphetamine use by San Miguel on the date of the incidents in question. It granted the prosecutor’s motions to admit propensity evidence under Evidence Code section 1109 showing prior acts of domestic violence by San Miguel against D.C., including the battery conviction alleged in count 1. It granted the defense motion to introduce D.C.’s prior conviction for giving a false name to a police officer for impeachment purposes and found that San Miguel’s 1990 conviction for manslaughter involved moral turpitude and therefore was admissible to impeach him, if he were to testify.

The trial court found that D.C. was unavailable as a witness (Evid. Code, § 240) after efforts to locate her for trial were unsuccessful. The court allowed D.C.’s preliminary hearing testimony to be read to the jury as part of the prosecution case, subject to redactions agreed upon by the parties.

The trial court reviewed two 911 call recordings proffered by the prosecution. The first recording included statements made to the 911 dispatcher by D.C.’s sister, A.C., describing the incident that occurred on July 17, 2015. The court found the statements were inadmissible hearsay. The second recording was of a 911 call made by D.C. and her brother-in-law on August 4, 2015, while San Miguel and another man were fighting directly outside of the apartment. The court found the statements were nontestimonial and admissible under the spontaneous statement exception to the hearsay rule, because the callers were speaking under the stress of the events happening outside their door.

During trial, defense counsel informed the court that it was investigating evidence that might support a showing that the July 17, 2015 incident occurred outside of Santa Clara County, in line with D.C.’s preliminary hearing testimony and impeaching her later statements to the police about where the incident occurred. This led to several on‑the‑record discussions in which the court considered potential late discovery and venue issues associated with the evidence. Ultimately, however, the defense did not present any such evidence.

2. Evidence Adduced at Trial

According to the evidence presented at trial, D.C. and San Miguel were in a relationship for two years. They were homeless together and lived in San Miguel’s truck or in tents. D.C. was a regular methamphetamine user. She claimed the drug use did not affect her memory. She and San Miguel both used methamphetamine on the day of the July 17, 2015 incident.

Before that day, San Miguel had been violent “many times” with D.C. One time, he twisted her elbow and it snapped, causing swelling and pain for weeks. She did not go to the hospital. At other times he caused injuries that hurt her for days. Her sister, A.C., testified that D.C. often had bruises under her eyes and on her arms. D.C. told A.C. that San Miguel would get mad and hit her. D.C. is anemic and bruises easily. A.C. encouraged D.C. to leave San Miguel, but D.C. always went back to living with him.

The parties stipulated that on May 5, 2014, San Miguel was convicted of one count of battery on a person with whom he had a dating relationship, in violation of sections 242 and 243, subdivision (e). The superior court issued a criminal protective order that same day, naming D.C. as the protected party and permitting peaceful contact.

About a month before the July 2015 incident, D.C. was in a fight with another woman and was injured in her right eye but “nowhere close” to where San Miguel injured her.

On July 17, 2015, D.C. and San Miguel were in his truck. He was going to a job; they may have been north of Santa Clara County. They argued. He hit her first in the face with his hand, then struck her repeatedly in the legs with a flashlight. The flashlight was about a foot long and metal. He hit her below the knees, in the front of the legs. She “kept . . . putting [her] hands in” to try to protect herself and so got hurt in other places. She “couldn’t get away”; he stopped when she asked to use the restroom. She returned to the truck and stayed there while he worked.

The next day, they went to a recycling center and D.C. saw a friend, who noticed her “legs and . . . face and everything” and asked if she needed help getting away. The friend helped her leave the recycling center and go to a house, where they called A.C., who picked her up.

A.C. saw that D.C.’s legs were injured. She could not walk on her own. She had bumps and open wounds with blood. A.C. thought that a wound was infected because there was pus. She brought D.C. to her house and called an ambulance. D.C. was “really emotional” and told A.C. that her boyfriend had hit her with “some kind of flashlight.”

A San Jose police officer arrived at A.C.’s house after the paramedics and followed her to the hospital. He spoke with D.C. and photographed her injuries. She told him that she had been attacked in the Marina Foods parking lot in San Jose. She said she was struck six to seven times in the face, and was struck in the right leg with a flashlight. After the attack stopped, she ran away. She was helped by a friend and stayed a night at the friend’s house before being taken to her sister’s house the next day. The officer opined that D.C.’s injuries appeared to be “fresh” from the last day or so.

D.C.’s relationship with San Miguel continued for another month and a half. She was staying with her brother-in-law and his family in an apartment in San Jose. A.R. is D.C.’s niece. One night A.R. was in the living room and awoke at about 1:00 a.m. to find San Miguel trying to enter through the apartment window; his leg and head were inside. He asked her if D.C. was there. She said no, and he left.

Soon after D.C. was at the park of the apartment complex. She was there with another male friend when San Miguel appeared. D.C. “panicked and . . . ran” because she recognized the look on San Miguel’s face and “knew [she] was going to get hit.” D.C.’s friend tried to distract San Miguel away from her. D.C. got to the door of the apartment and grabbed the doorknob. San Miguel grabbed her waist. She screamed for help, and her brother-in-law opened the door and said he was going to call the police.

A recording of the 911 call from August 4, 2015, was played for the jury.[3] The caller described a fight between two men outside the apartment door, and D.C. told the dispatcher that she had a restraining order against San Miguel who was fighting outside. A police officer was dispatched to the apartment complex at about 10:50 p.m. He testified that San Miguel was not there when he arrived. He spoke with D.C., who said that San Miguel had approached her at the park and asked to talk, then chased her to the apartment where San Miguel grabbed her. The other male removed San Miguel’s grip, and D.C. was able to enter the apartment.

Richard Ferry testified as an expert on “domestic partner violence and batterer’s syndrome.” He offered several reasons why victims have a difficult time remembering acts of violence, why they may minimize the severity of the abuse, and why they often remain in a violent relationship or have difficulty leaving.

3. Jury Instructions and Verdict

Neither counsel objected to the trial court’s final proposed jury instructions. The court instructed the jury on December 2, 2016. The offense‑specific instructions included CALCRIM No. 840A as to count 1, CALCRIM No. 841 as to the lesser included offense for count 1, and CALCRIM No. 2701 as to counts 2 and 3. The court also instructed the jury on considering the testimony of Ferry about the effects of intimate partner battering using CALCRIM No. 850, and on considering the evidence of uncharged domestic violence by the defendant using CALCRIM No. 852.

The jury returned a verdict of guilty as to all three counts.

4. Strike Prior

The trial court held the second phase of trial that same day on the bifurcated issue of the alleged prior. San Miguel waived his right to a jury. Based on the certified copy of the complaint and abstract of judgment, the court found that San Miguel was convicted of voluntary manslaughter in 1990, defined as a violent and serious felony under sections 667.5, subdivision (c) and 1192.7, subdivision (c).

C. Romero[4] Request and Sentencing

On June 19, 2017, San Miguel filed a Romero motion requesting the trial court to exercise its discretion pursuant to section 1385 to dismiss the strike prior. He argued that although his prior conviction for voluntary manslaughter was a violent offense, it was nearly 30 years old, lacked malice aforethought or intent to kill, and represented his only violent or serious prior. Based on his social history and efforts at rehabilitation while in custody, he urged the court to exercise its discretion to sentence him on the current conviction outside of the Three Strikes law. A former employer of San Miguel attended the hearing on the Romero motion to speak about San Miguel’s work ethic and to tell the court that he would provide San Miguel full time employment upon his release from custody.

On August 4, 2017, the trial court denied San Miguel’s Romero request. It cited the violent nature of the current offense involving a beating with a large flashlight. It noted that although San Miguel was only 19 years old when he committed the prior serious felony, he has not been free of criminal convictions since his release, and in fact was on probation for another domestic violence crime at the time of the current offense.

The trial court sentenced San Miguel to twice the middle term of three years for count 1, for a total prison term of six years. It calculated 1,381 days of custody credits, based on 691 actual days and 690 under section 4019. As to counts 2 and 3, the court denied probation and sentenced San Miguel to “60 days in the county jail” with “60 days of credit for time served on those two counts.” It imposed a no contact order with D.C. for a period of 10 years, and authorized fines and fees, stating the basis for each on the record.

DISCUSSION

We have conducted an independent review of the record pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly, supra, 40 Cal.4th 106, and have concluded that there are no arguable issues on appeal. The jury verdict was supported by substantial evidence, and the trial court did not abuse its discretion in its evidentiary rulings on the motions in limine or when it denied the Romero request.

DISPOSITION

The judgment is affirmed.