P. v. Mercado
Filed 9/6/13 P. v. Mercado CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
FREDDIE MERCADO,
Defendant
and Appellant.
E057699
(Super.Ct.No. RIF1103878)
OPINION
APPEAL
from the Superior Court
of
County. Craig Riemer,
Judge. Affirmed.
Susan
K. Massey, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
A
jury convicted defendant and appellant Freddie Mercado of
273.5, subd. (e)(1)),
name="_ftnref1" title="">[1] assault by force likely to cause great bodily
injury (count 2—§ 245, subd. (a)(4)), and dissuading a witness (count 3—§
136.1). Thereafter, defendant admitted a
section 667.5, subdivision (b) enhancement.
years’ incarceration consisting of the midterm of four years on count 1; the
midterm of three years on count 2, stayed pursuant to section 654; the midterm
of two years on count 3, to be served concurrently; and an additional year on
the section 667.5, subdivision (b) enhancement.
We affirm the judgment.
Defendant
was married to a woman with whom he had two sons. However, defendant had been involved in a
relationship with the victim for three years.
She had a restraining order against defendant at the time of the instant
offenses. Defendnt had previously been
convicted of domestic violence against the victim. During that incident, defendant awoke the
victim with his hands around her neck, slapped the victim several times, and
hit her in the face causing a black eye.
Despite
the restraining order, the victim
testified defendant lived in the victim’s home.
On April 17, 2011,
defendant came to the victim’s home to return the victim’s car, which he had
borrowed. Defendant left his two sons
with the victim and departed. The victim
was angry with defendant because he had not come home the night before and
failed to return her car earlier; she believed he must have spent the night
with his wife.
Defendant
returned after approximately two hours and asked her to go with him into a barn
on the victim’s property. After entering
the barn, defendant and the victim started arguing. Defendant was angry with the victim because
she had not fed his sons while he was gone.
The
victim struck defendant in the head
with a horse brush. Defendant then
struck the victim several times. She
attempted to push him away. Defendant
put his hands around the victim’s neck and started choking her. She began seeing stars and darkness. The victim told defendant she had urinated
her pants; he kissed her and pushed her away.
The
victim ran into her house and changed her pants. She called the police from the neighbor’s
home. The People played an audio
recording of the 911 call made by the victim that day. In it, the victim states “I have a
restraining order against um, my ex-boyfriend, and he beat the shit out of me
again today.†She reported defendant had
threatened her, choked her, and caused bruises on her neck and lump on her
forehead. “Within five minutes of him
getting there, he started pounding on me[.]â€
Deputy
Sheriff Harold Odom was dispatched to the neighbor’s residence on April 17, 2011, in response to a
reported instance of domestic violence.
When he arrived he observed the victim “had been crying. Her face was still really red. Her eyes were red. She was still shaking. . . . I gave her a few minutes to calm down. She wiped her face off and then she started
telling me exactly what happened.†“She
had several marks on her—starting from the top on her head, her—right next to
her eye, her neck, her—both her arms.â€
“She smelled like urine.†Gloria
Davis, Project Manager of the Sexual Assault Response Team at Riverside County
Regional Medical Center, testified involuntary urination is a physical symptom
of strangulation. The victim had bruises
on her arm and forearm, a bump on her forehead, and strangulation marks.
The
victim told Odom defendant had punched her several times until she fell to the
ground. Defendant then got on top of
her. She then struck him six or seven
times. Defendnt told her that for every
time she hit him, he would hit her twice.
Defendnt then started choking the victim; she began to see stars; she
urinated her pants. Defendant let her up
and, as she left the barn, he “threatened her that if she calls the cops he’s
going to kill her and he’ll come back and make her disappear.†During trial, the victim spoke to Odom and
told him she feared retribution from defendant for her testimony.
Defendant
reported to Odom that he and the victim had simply engaged in a verbal
argument; no physical altercation had occurred between either of them. He did not have any visible injuries. Defendnt said the victim was mad because he
had stayed out with her car all night at his wife’s home. He said he left his children with her because
he did not believe she would mind watching them; he said she could have at
least fed them.
Upon
defendant’s request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People
v. Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts, and potential arguable issues and requesting this court
to conduct an independent review of the record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record
for potential error and find no arguable issues.
The judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Defendant
waived his right to a jury trial on the section 667.5 subdivision (b)
enhancement. The court granted
defendant’s motion that the enhancement be tried to the court after trial on
the substantive counts.
