P. v. Nye

 

 

 

 

 

 

 

 

Filed 11/8/13  P. v. Nye 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(El
Dorado)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   KENNETH BRUCE NYE,                           Defendant and Appellant.

C071415   (Super. Ct. No. P11CRF0534)

 

 

            Defendant
Kenneth Bruce Nye repeatedly beat and verbally threatened his wife (the victim)
during their marriage of approximately seven years.  In this case, a jury found him guilty of making
criminal threats and inflicting corporal
injury on the victim having previously been convicted of corporal injury on
her within seven years.

            The evidence
supporting the current crimes was as follows: 
On October 21, 2011,
defendant (who was living apart from the victim) came over to her house to
return some bike tires, but the victim told him to leave.  Instead of leaving, defendant went inside a garage
on the property.  The victim told him to
get off the property.  Defendant hit the
victim on her head with something that felt like a metal pipe, causing her nose
to bleed, and then told her, “ ‘I’m going to kill you, bitch.’ ”  The victim called 911, and police found defendant
hiding in his car.  Defendant denied
hitting the victim and said he was being sarcastic when he told her he was
going to kill her.  Approximately four
years before these crimes, defendant pled to inflicting corporal injury on the
victim. 

            At trial, defendant’s
sister testified that the victim had falsely accused the sister of “attacking
[the victim], hitting her, [and] vandalizing her home.”  Defendant’s sister acknowledged that charges
were filed against her, but she claimed it was a “false police report.” 

            On appeal,
defendant raises two evidentiary issues and one sentencing issue.   Finding
merit in only the sentencing issue, we modify the judgment.

DISCUSSION

I

>There Was Sufficient Evidence Of Defendant’s
Prior Corporal Injury Conviction

            Defendant
contends there was insufficient evidence to support the jury’s finding that he
had a prior conviction for inflicting corporal injury on a spouse within seven
years of the current crimes.

            The proof
of the prior conviction consisted of the following:  toward the very end of the People’s
case-in-chief and in front of the jury, the prosecutor asked the court to take judicial
notice of the following:  “[A] plea that [defendant]
entered to a violation of Penal Code Section 273.5, corporal injury to a
spouse, being [the victim].  He entered
that plea on April 23rd of 2007.” 
Defense counsel did not object, and the court stated it would take the
requested judicial notice.  The People
then rested and the court told the jury, “So, ladies and gentlemen, you basically
heard all of the testimony you’re going to hear from the People in this case,
at least up to this point.  If there’s
rebuttal testimony, that’s something else. 
[¶]  Now we’ll start with the Defense
case.”  In opening statement and in
closing argument, defense counsel admitted to the jury that defendant had pled
to that prior conviction. 

            Defendant’s
insufficiency of the evidence argument is based on the fact that the only
evidence of the prior conviction was the judicial
notice of the prior conviction. 
According to defendant, “a judicially noticed fact does not constitute
evidence, but rather is a recognition of the existence of a fact as a matter of
law.”  He is wrong.  “ ‘Judicial notice is the recognition and
acceptance by the court, for use by the
trier of fact or by the court, of the
existence of a matter of law or fact that is relevant to an issue in the action
without requiring formal proof of the matter.’  [Citation.] 
The court may in its discretion take judicial notice of any court record
in the United States.  [Citation.]  This includes any orders, findings of facts
and conclusions of law, and judgments within court records.”  (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882, italics added.) 
Defendant’s plea to corporal injury to a spouse falls within these
parameters.

II

>Defendant Forfeited His Argument Regarding Questioning
His Sister

>About Whether Charges Had Been Filed Against
Her For Battering The Victim

            Defendant
contends the trial court abused its discretion when it allowed the People to
question his sister about whether criminal charges had been filed against her
because the court prohibited the defense from eliciting evidence that those
same charges were dismissed.  We find the
issue forfeited, despite defendant’s argument that any objection would have
been futile. 

            It was
actually defense counsel who moved to admit the evidence that defendant’s
sister was charged with battering the victim. 
Specifically, defense counsel filed an in limine motion to admit the
following facts:  a misdemeanor complaint
was filed against defendant’s sister and the charges were dismissed in the “i[nterest]
of j[ustice].”  At the hearing on whether
to admit this evidence, the court noted that a dismissal in the interest of
justice did not mean it was a false charge, noting that “[c]ases get dismissed
all the time for a myriad of reasons.”  As
the matter continued to be discussed, the court reiterated that there was no
evidence as to why the case was dismissed, so the court was not going to allow
in evidence of the dismissal.  Even as
the court continued making its ruling clear on the inadmissibility of the
dismissal evidence, defense counsel still urged the admission of the fact that defendant’s
sister was charged.  Specifically,
defense counsel stated, “So we are allowed to get into the fact that she was
charged, correct?”  The court agreed and also
agreed to allow testimony from defendant’s sister herself that “[s]he can say
they’re false.”  At no point did defense
counsel argue that he wanted evidence of the charges being filed excluded if he
was not allowed to solicit evidence that the charges were dismissed.  During direct examination of defendant’s
sister, defense counsel asked whether the victim had ever accused her of doing
something she had not done.  Defendant’s
sister testified the victim had accused her of “attacking her, hitting her,
[and] vandalizing her home.”  During
cross-examination, the People asked defendant’s sister if charges were filed
against defendant’s sister.  Defendant’s
sister responded, “Yes, she did bring a false police report.” 

            Defendant now
claims that any objection to the evidence that charges were filed against defendant’s
sister would have been futile.  (See >People v. Dykes (2009) 46 Cal.4th 731,
756 [“trial counsel’s failure to object to claimed evidentiary error on the
same ground asserted on appeal results in a forfeiture of the issue on appeal”];
People v. Wilson (2008) 44 Cal.4th
758, 793 “[a] litigant need not object . . . if doing so would be
futile”].)  Not so.  Since it was defense counsel who requested
admission of the evidence of the charges being filed, we cannot say the court
would have refused to allow defense counsel to withdraw that request once it
ruled that the evidence of the dismissal could not come in.  Importantly, the record reflects that defense
counsel did not want to withdraw his request.  He wanted the evidence of dismissal admitted,
but failing that, the record

 

 

demonstrates he was satisfied
at the very least to have defendant’s sister testify that those charges were
false, as counsel was still pressing his request to admit the charges into
evidence after the court made clear it was not allowing in evidence of the
dismissal.  Thus, defendant’s claim that
the court should not have admitted evidence of the charges against defendant’s
sister is forfeited because defense counsel failed to request its exclusion in
the trial court. 

III

>The Court Improperly Ordered Defendant To
Pay A Criminal Needs Assessment Under Government Code Section 68085.4, But No
Amendment To The Abstract Is Needed

            Defendant
contends and the People concede the trial court improperly ordered defendant to
pay a criminal needs assessment under Government Code section 68085.4.  That code section deals with how certain fees
that are collected should be allocated. 
(Gov. Code, § 68085.4, subd. (a).) 
While the court orally pronounced it was imposing a total of $60 in critical
needs assessment fees pursuant to that code section, the abstract of judgment
notes that a “criminal conviction assessment” of $60 was imposed pursuant to
Government Code section 70373.  That code
section imposes a mandatory assessment of “thirty dollars ($30) for each . . .  felony” “[t]o ensure and maintain adequate
funding for court facilities.”  (Gov.
Code, § 70373, subd. (a).)   While it is
generally true an oral pronouncement of judgment controls (People v. Mesa (1975) 14 Cal.3d 466, 471), where an assessment is
mandatory, its “omission may be corrected for the first time on appeal” (>People v. Castellanos (2009) 175
Cal.App.4th 1524, 1530).  However, no
amendment to the abstract of judgment is necessary, because the abstract of
judgment notes the correct code section for the $60 assessment.

DISPOSITION

            The
judgment is modified to reflect that the $60 assessment is imposed pursuant to
Government Code section 70373.  (No
amendment to the abstract of judgment is necessary, because the abstract of
judgment notes this already.)  As
modified, the judgment is affirmed. 

 

 

 

                                                                       ROBIE          , Acting P. J.

 

 

 

We concur:

 

 

 

          BUTZ           , J.

 

 

                

          HOCH           , J.