P. v. Hubert

Filed 1/10/07  P. v. Hubert CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

                      APPEAL from the Superior Court of Riverside County.  William R. Bailey, Judge.  (Retired judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)  Affirmed with directions.

                      David Blair-Loy, under appointment by the Court of Appeal, for Defendant and Appellant.

                      Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Marilyn George, Deana L. Bohenek, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

                      A jury convicted defendant of inflicting corporal injury on a cohabitant.  (Pen. Code, § 273.5, subd. (a).)  In bifurcated proceedings, the trial court found he had been convicted of three priors, for which he served prison terms (Pen. Code, § 667.5, subd. (b)) and one strike prior (Pen. Code, § 667, subds. (c) & (e)(1)).  He was sentenced to prison for seven years.  He appeals, claiming jury instruction error, prosecutorial misconduct and incompetency of trial counsel occurred.  In a petition for writ of habeas corpus, which we considered with this appeal for the purpose of determining whether an order to show cause should issue, he repeats some of those arguments.  We reject all his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment.  We addressed the petition for writ of habeas corpus by separate order.  (See case No. E038919)

Facts

                      On May 12, 2003, a man driving down a Lake Elsinore street saw the victim run in front of his car, bleeding from the nose and screaming.  Defendant grabbed her, turned her around and hit her and she went to the ground in the middle of the street.  The man did not see the two in a tug of war over an item.  He drove to a nearby fast food restaurant and summoned two police officers who were there.  When he returned to the scene, defendant had the victim at the side of the road.  She broke away and ran in the direction of the man, but defendant caught up to her and dragged her back to the side of the road.  The police officers arrived when defendant was on top of the victim, trying to pick her up off the ground and pull her to the other side of the road.  At this point, the man did not see defendant and the victim struggling over anything.  The first responding officer saw defendant grab the victim by the arm and throw her down to the ground on her back.  Defendant then crouched over the victim, hitting her in the face at least two or three times.  She tried to block his blows with her hands.  The officer saw nothing in her hands.  The second officer to arrive at the scene saw defendant bent over the victim, who was on her back on the ground, striking her with overhead blows at least two times.  He observed redness and swelling to both cheeks of the victim, as well as a bloody nose.  The victim told him that defendant had taken her by both arms and shoved her to the ground, causing her to hit her face.

Issues and Discussion

1.  Jury Instruction

                      The victim, defendant's live-in girlfriend, testified that she took defendant's cell phone from the console of his truck and ran across the street but only got halfway there when he caught up to her and each pulled on the cell phone as she held it to her chest.  In his effort to retrieve the cell phone, defendant reached from behind the victim to her front and grabbed the phone.  In so doing, he caused both to fall to the ground, the victim landing on her butt and not hitting her face on the ground.  They continued to struggle over the phone in a tug-of-war manner while on the ground.  She denied that defendant struck her while they struggled.  She said defendant did nothing other than hold onto the phone both before and after they fell to the ground and she denied that he knocked her to the ground, thus implying that they accidentally fell.  She denied there was pushing or shoving over the cell phone.  She initially denied knowing how her nose and face got bloody, but later recalled that defendant had hit her in the nose earlier when she had beaten his truck with a pole.  She was not able to say how her cheek became bruised.  The phone ended up on the ground.  Defendant got up and the police arrived.

                      During discussion of the jury instructions, defense counsel said he was contemplating requesting CALJIC No. 5.43 in connection with the struggle over the cell phone.  That instruction provides, â€