P. v. Smith

Filed 1/12/07  P. v. Smith CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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     A jury found defendant Gary Dolph Smith guilty of battery on a former cohabitant that resulted in a traumatic condition (Pen. Code, §  273.5, subd. (a)),^[1] and felony battery (§  243, subd. (d)).  He was sentenced to 18 years in state prison and ordered to pay a restitution fine.  

     Defendant appeals, contending (1)  the trial court erred in excluding evidence of the victim's prior misdemeanor prostitution convictions; (2)  the court erred in admitting an act of prior domestic violence against the same victim; and (3)  defense counsel failed to provide effective representation during sentencing.  We shall affirm the judgment. 

BACKGROUND

A.  Facts Surrounding Present Offense

     Defendant and the victim Elizabeth G. began dating in August of 2003.  Elizabeth terminated the relationship in December of 2004 following an argument on December  11 that turned physical and culminated in defendant's biting her several times on the face (hereafter the December  11 incident).  After the December 11 incident, defendant called Elizabeth several times in an attempt to renew their relationship. 

     Three months later, on March 8, 2005, at about 2:00 p.m., defendant came to the warehouse of Pyramid Advertising (Pyramid), where Elizabeth worked as a manager.  Defendant and Elizabeth spoke briefly, and she suggested that they take a walk.  She had already told him over the phone that she was seeing someone else.  As they walked for about a block, Elizabeth told him their relationship was over.  He confronted her as to whom she was seeing and she told him she was now dating Michael McKinney, who they each claimed was their â€