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P. v. Lowery

P. v. Lowery
07:17:2006

P. v. Lowery









Filed 7/14/06 P. v. Lowery 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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


(Butte)










THE PEOPLE,


Plaintiff and Respondent,


v.


KEVIN DOUGLAS LOWERY,


Defendant and Appellant.



C049742



(Super. Ct. No. CM018359)





A jury convicted defendant Kevin Lowery of battery in violation of Penal Code section 243, subdivision (a), a misdemeanor, having found him not guilty of the charged offense of battery resulting in serious bodily injury, a felony.[1] The trial court suspended imposition of sentence and placed defendant on probation for 36 months. The court ordered defendant to serve 90 days in county jail.


On appeal defendant claims: (1) the trial court should have discharged his retained counsel, (2) CALJIC No. 2.50.02 permitted the jury to convict him on the basis of an uncharged offense, (3) he received ineffective assistance of counsel, (4) the trial court erred in instructing the jury on flight as evidence of guilt, and (5) cumulative error. We shall conclude there was no error and shall affirm the judgment.


FACTUAL AND PROCEDURAL BACKGROUND


On May 16, 2002, Ronald Rice was doing yard work at a home near the intersection of Idaho and Bayberry streets in Gridley, California. He heard some screeching brakes, thudding noises, and heard voices and some screaming. It sounded like someone was in distress. When he went to investigate, he discovered a woman, later identified as Dyanne Beach, lying on the side of the road in the dirt. He asked her if she were okay, but she just rolled around, seeming confused. Finally, she said she had been beaten up by her boyfriend. She said he threw her out of his truck. She told Rice she could not go home, and did not know where to go. Rice testified Beach did not smell of alcohol.


Then, Beach saw defendant drive up, pointed to his truck and said, â€





Description A decision regarding battery resulting in serious bodily injury, a misdemeanor, a felony and battery.
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