Filed 12/5/18 P. v. Claudino CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. RICKY CLAUDINO, Defendant and Appellant. |
A153708
(Contra Costa County Super. Ct. No. 05-171864-2) |
Ricky Claudino was convicted by jury of misdemeanor elder abuse (Pen. Code, § 368, subd. (c))[1] and felony assault with a deadly weapon (§ 245). Imposition of sentence was suspended, and Claudino was placed on formal probation for a period of three years, with a condition he serve one year in county jail.
Assigned counsel submitted a Wende[2] brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Claudino was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We agree no arguable issues are presented and affirm.
I. Background and Procedural History
Claudino lived in Crockett with his 81-year-old mother, Joyce.[3] On October 1, 2017, at about 9:00 p.m., Claudino came home drunk and entered the living room where Joyce was watching television. Joyce asked him to go to his bedroom. He said “fuck you” and went into the backyard. A few minutes later, Joyce found Claudino lying on his back on the cement patio. She tried to help him up, but he fell back down. Claudino eventually got up and moved to the kitchen. While in the kitchen, he swung Joyce’s cane and hit her on the ankle. They both went into the living room. Joyce poked Claudino with the cane to get him up to go to sleep on the couch. Claudino took the cane and hit her on the head with it. Joyce called 911 because of extensive bleeding from the wound.[4] She told the dispatcher Claudino “beat [her] up.” Joyce was treated at the scene by a paramedic, who recommended she go to the hospital for stitches, but she declined.[5]
Claudino was charged with felony counts of elder abuse (§ 368, subd. (b)(1); count one) and assault with a deadly weapon (§ 245, subd. (a)(1); count two). As to both counts, it was alleged Claudino personally inflicted great bodily injury on a victim aged 70 or older (§ 12022.7, subd. (c)).
At trial, the prosecution orally moved to amend the information to add an allegation that, in the commission of count two, Claudino personally used a dangerous and deadly weapon (§ 969f). On the prosecution’s motion, the court permitted introduction of evidence under sections 1109 and 1101, subdivision (b), that Claudino assaulted his mother in 2007 by slapping her, causing swelling above one eye, and that he pled no contest to misdemeanor elder abuse. The prosecution and defense both questioned Joyce about the incident, of which she had little recollection. The prosecution presented photographs of her injuries at the time. The defense presented testimony from Claudino’s former girlfriend that Joyce’s 2007 injury resulted from her own intoxication and not from an assault by Claudino. The defense theory in argument was that the blows struck by Claudino in 2017 were unintentional and accidental.[6]
The jury found Claudino guilty of misdemeanor elder abuse, a violation of section 368, subdivision (c), as a lesser included offense on count one, and guilty of felony assault with a deadly weapon as charged in count two. The jury additionally found Claudino personally used a deadly weapon under section 969f, but that he had not inflicted great bodily injury under section 12022.7.
At sentencing, the court denied a defense motion to reduce count two to a misdemeanor pursuant to section 17, subdivision (b). Imposition of sentence was suspended, and Claudino was placed on three years’ formal probation, with conditions that he serve one year in county jail and receive credit for any time spent in an approved residential alcohol treatment facility. Claudino filed a timely notice of appeal.
II. Discussion
We find no arguable issues. Claudino was represented at trial by competent counsel, who effectively cross-examined the witnesses and argued on his behalf. More than substantial evidence supports the jury verdicts.
Evidence of Claudino’s prior 2007 assault on his mother was properly admitted under Evidence Code section 1109.[7] The court conducted a pretrial hearing on the proffered evidence and made an appropriate analysis under Evidence Code section 352—limiting the scope of the evidence to the fact of the assault and resulting misdemeanor conviction. No abuse of discretion is shown. (People v. Culbert (2013) 218 Cal.App.4th 184, 192 [trial court’s Evid. Code, § 352 determination reviewed for abuse of discretion and affirmed unless “ ‘ “arbitrary, whimsical, or capricious as a matter of law” ’ ”].)
III. Disposition
The judgment is affirmed.
_________________________
BRUINIERS, J.*
WE CONCUR:
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JONES, P. J.
_________________________
SIMONS, J.
A153708
[1] Undesignated statutory references are to the Penal Code.
[2] People v. Wende (1979) 25 Cal.3d 436.
[3] Because the appellant and victim share a common surname, we refer to the victim by first name to avoid confusion. No disrespect is intended.
[4] A recording of the call was played for the jury.
[5] A photograph of Joyce and her wounds was presented to the jury.
[6] On cross-examination, Joyce testified she did not want Claudino prosecuted and believed she was struck accidentally.
[7] Evidence Code section 1109 provides in pertinent part: “(a)(2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant’s commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
