P. v. Gonzales

Filed 2/24/06 P. v. Gonzales CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Fred J. Fujioka, Judge. Modified and affirmed.

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

BACKGROUND

Appellant was convicted of corporal injury to a former cohabitant or mother of his child in violation of Penal Code section 273.5, subdivision (a).[1] The jury found that appellant inflicted great bodily injury on the victim in the commission of the crime, pursuant to the sentence enhancement allegation of Penal Code section 12022.7, subdivision (e). On February 24, 2005, appellant was sentenced to seven years in prison, and filed a timely notice of appeal the same day.

DISCUSSION

Appellant contends that each of a number of errors and their cumulative effect prejudiced him and requires reversal. He also contends that the trial court erred in assessing a fee under Penal Code section 1203.097. As we explain within, we reject appellant's claims of error, but appellant's second contention is correct, and we shall strike the fee.

1. Evidence of Prior Domestic Violence

Appellant contends that the trial court abused its discretion in overruling his objection, made under Evidence Code section 352, to all evidence of prior domestic violence, by failing to conduct an adequate hearing on the issue pursuant to Evidence Code section 402.[2] Respondent counters that appellant has not preserved the issue for appeal, because he failed to make a specific and timely objection. (See § 353, subd. (a).)

We agree with appellant that the court did not conduct a hearing pursuant to section 402, which provides for a procedure to determine preliminary and foundational facts when necessary to determine admissibility of evidence. But we also agree with respondent that appellant has waived his objection to evidence of prior domestic violence. To explain, we summarize the proceedings in which the objection was made.

Prior to jury selection, the prosecution informed the trial court that a 402 hearing would be requested. The trial court suggested that the hearing take place immediately, and the prosecution agreed. No section 402 hearing took place, however, since no evidence was presented and the court was not asked to find any preliminary or foundational facts. (See generally, People v. Williams (1997) 16 Cal.4th 153, 196-197.)

Nor did the prosecution initially go forward with an offer of proof, as appellant suggests. It was the defense who first went forward, not with evidence of a preliminary or foundational fact, but with two motions in limine to exclude evidence. First, defense counsel, Ms. Kim, pointed out to the court that when appellant was arrested, he was wearing a tank shirt with the brand name, â€