P. v. Collom

















Filed 10/5/10 P. v.
Collom CA3









NOT
TO BE PUBLISHED





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opinion has not been certified for publication or ordered published for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 CALIFORNIA

THIRD APPELLATE
DISTRICT

(San
Joaquin)

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>

THE PEOPLE, Plaintiff and Respondent, v. DAVID PAUL COLLOM, Defendant and Appellant.

C062499 (Super. Ct. No. SF110831A)

A jury found
defendant David Paul Collom guilty of inflicting
corporal injury on his wife, felony false imprisonment, and grossly
negligent discharge of a firearm, and found that in committing the first two
crimes he personally inflicted great bodily injury under circumstances
involving domestic violence. The trial
court sentenced him to an aggregate term of five years in prison.

On appeal,
defendant contends the trial court
erred in instructing the jury on felony false imprisonment and the great bodily
injury enhancements and he received ineffective assistance of counsel with
respect to both of those instructional issues.
He also contends there was insufficient evidence he inflicted great
bodily injury on the victim during the commission of the false imprisonment,
the admission of prior acts of domestic violence violated his constitutional rights to due process,
fines and fees not orally pronounced but found in the court minutes and the
abstract of judgment must be stricken, and imposition of the court facilities assessment
under Government Code section 70373 on the charge of grossly negligent
discharge of a firearm violated the ex post facto clauses of the state and
federal Constitutions.

We conclude the
trial court prejudicially erred when it failed to instruct the jury properly on
the elements of felony false imprisonment, and there was insufficient evidence
to support the great bodily injury enhancement on the false imprisonment
charge. We also conclude the trial court
did not properly pronounce all of the applicable fines and fees. Beyond that, we either reject, or need not
reach, defendant's remaining arguments.
Accordingly, we will affirm the convictions for inflicting corporal injury
and grossly negligent discharge of a firearm, but will otherwise reverse the
judgment and remand the case for further proceedings.

FACTUAL
AND PROCEDURAL BACKGROUND

At the time of
trial in June 2009, defendant and the victim had been married for eight
years. In December 2008, they were
living in Stockton. Sometime around Christmas, defendant fired
numerous gun shots inside their house.

About a month
later, on January 25, 2009,
the victim got a ride back to the house from another man after she could not
start her car. The victim entered the
house while defendant asked her who the man was. She answered and continued to walk past
defendant, when he asked her why she had not told him she was leaving. The victim put her hand up, told defendant
she had to go to the bathroom, and continued walking through the living room
and into the kitchen.

In the kitchen,
defendant managed to get in front of the victim and struck her in the face with
his fist, breaking her nose and her cheekbone and knocking her to the
floor. Defendant continued punching her
while she was down, and when she hit back, defendant began striking her harder
and placed his knee on her cheek, pushing her face into the floor.

Somehow the victim
managed to get up, and defendant backed off.
When she started to run toward the kitchen door, he reached it first and
appeared to lock it. She then moved
toward the front door, but he again got in front of her and ran to that door,
where he checked the locks. The victim
saw her brother passing by outside the kitchen window, and as defendant was
coming back from the front door, she went to the window and opened it, telling
defendant she needed to breathe. She
then told her brother to help her and started to reach out of the window. Her brother grabbed her arms to pull her out,
but defendant grabbed her legs, and the two men tugged and pulled on her. After about a minute or so, her brother
prevailed and pulled her outside, where she ran to a neighbor's house.

Defendant was
charged with grossly negligent discharge of a firearm for the incident in
December 2008 and with inflicting corporal injury on a spouse and felony false
imprisonment for the incident in January 2009.
Each of the latter two charges included an enhancement allegation under
Penal Code[1]
section 12022.7, subdivision (e), alleging that in committing the crime
defendant personally inflicted great bodily injury under circumstances
involving domestic violence.

Before trial, the
prosecution moved to introduce evidence under Evidence Code section 1109 of
prior conduct by defendant involving domestic violence. The trial court ruled that â€