Opinion
E081165
02-26-2024
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS STEVEN CHRISTOPHER, Defendant and Appellant.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF2205552, Matthew C. Perantoni, Judge. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Nicholas Steven Christopher pled guilty to possession of a controlled substance (Health &Saf. Code, § 11377 subd. (a), count 6). A jury later convicted defendant of vandalism causing over $400 in damages (Pen. Code, § 594, subd. (a), count 5). Defendant thereafter admitted he had suffered a prior serious felony (Pen. Code, § 667, subd. (a)) and prior strike conviction (Pen. Code, § 667, subds. (c) &(e)(1)). The court sentenced defendant to two years eight months of imprisonment.
All further statutory references will be to the Penal Code unless otherwise stated.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying two potentially arguable issues: (1) whether insufficient evidence supported the jury's finding that the vandalism caused over $400 in damages; and (2) whether the court abused its discretion in denying defendant's motion to strike his prior strike conviction.
We offered defendant the opportunity to file a personal supplemental brief, which he has not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
By first amended information filed February 6, 2023, the People charged defendant with domestic violence (Pen. Code, § 273.5, subd. (a), count 1), assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4), count 2), assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 3), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1), count 4), vandalism causing damage over $400 in damages (Pen. Code, § 594, subd. (b)(1), count 5), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 6).
The People additionally alleged that in his commission of the count 1 and 2 offenses, defendant personally inflicted great bodily injury (§§ 12022.7, subd. (e) &1192.7, subd. (c)(8)), and in his commission of the count 3 offense, he personally used a firearm (§ 12022.5, subd. (a) &1192.7, subd. (c)(8)). The People further alleged defendant had suffered a prior serious felony conviction (§ 667, subd. (a)), a prior strike conviction (§§667, subd. (c), (e)(1) &1170.12, subd. (c)(1)), and various aggravating factors (Cal. Rules of Court, rule 4.21(a)(1), (a)(2), (b)(1), (b)(2), (b)(3) &(b)(5)). Defendant pled guilty to the court on the count 6 offense.
At trial, Jane Doe testified that she used to date defendant. On March 16, 2022, two days after they broke up, she was working as an armed security guard. After she got off work, she drove over to defendant's apartment at his invitation. He let her inside.
Defendant was ignoring her, so she felt there was no point continuing to remain; she told him she was leaving. Defendant "jumped off of the couch and hit [her] in [her] face." He hit her with a closed fist. She hit him back.
Defendant then picked her up and threw her on the couch. He jumped on top of her, straddling her. While on top of her, with a closed fist, he socked her in the face and choked her. He punched her between four and five times. While he was choking her, she could not breathe; she was in pain. She ended up passing out.
When she awoke, defendant was still on top of her and had her gun in his hand. She had urinated herself. She felt, "Scared. Terrified." Defendant pointed the gun at her head, told her he was going to kill her, and pulled the trigger twice. The gun would not fire. He then started hitting her in the head with the butt of the gun. She blacked out again.
When she awoke, defendant was still on top of her, hitting her in the face. He then screamed he was going to kill her.
He got off her. She got up. Defendant continued to point the gun at her and threatened to kill her. "He's sitting on the arm of the couch. I'm standing with my back against the wall, and he's pointing the gun at me. I'm begging him to let me leave, and he wouldn't let me leave. He just kept telling me no. I wasn't going nowhere. If I move, he was going to shoot me. He was going to kill me." She was screaming for help.
Ten minutes later there was a knock at the door. Defendant told her not to say anything. He put the gun in his pocket. She answered the door. It was the police.
She was taken to the hospital. She sustained numerous injuries to her head, neck, and shoulders, including gashes, bruises, scratches, and swelling. A forensic nurse examiner testified that strangulation "can lead to unconsciousness, bowel and bladder loss, and then death, depending on how long the pressure is left on the neck."
An officer testified she responded to defendant's residence in reference to a 911 call reporting "loud arguing within an apartment, and they believed a woman was being assaulted." The transcript of the 911 call played for the jury reflects the reporting party said, "our neighbors . . . I heard them arguing. A man and a woman. And he started to hit her[,] and she screamed to help her and to stop hitting her."
Doe answered the door after the officer knocked. Doe rushed out: "She appeared very panicked, very upset." "She was crying. She was visibly shaking." The officer noted numerous injuries to Doe's face.
The officer attempted to detain defendant: "He was pulling away from me. I couldn't gain control of both of his hands at the same time to handcuff him." The officer's partner warned defendant that if he did not comply, they would tase defendant. Defendant complied at that point; they handcuffed him. A search of defendant revealed a handgun belonging to Doe.
When placed inside a police vehicle, defendant "was moving his body forcefully back and forth. He was kicking the inside of [the] vehicle. He was kicking the windows, the metal partition between the front and the back seat. He was kicking the door outward from the inside kicking it outward." "There was significant damage inside of the vehicle. There [are] ballistic panels on the insides of the doors. The door, on the inside, the ballistic panel was completely bent. The center partition from the front to the back seat was also bent. The door was bent with such force from the inside [that] the outside . . . door panel that goes along the window seal all the way down, was completely bent. So the door was unable to be completely closed. The window . . . was rolled down, but then it wasn't able to be rolled back up, due to the door being bent."
Another officer testified defendant kicked the door of the police vehicle "approximately five times." The People played the jury a video of defendant "kicking the rear door of the police vehicle from inside."
The owner of Inland Body and Paint Center, a collision center, testified, "We have an estimating system that when a vehicle comes in and you're estimating it, you plug in the VIN, all the particulars of the vehicle, then it pops up on your screen, the parts, labor hours, if you're going to replace a part, the painting hours, things like that. And then, that generates-first, we generate an estimate, and then when the vehicle is completed, then we generate the invoice that goes in the file."
His company repaired the police vehicle; they invoiced $3,222.03 to repair the damage. "We removed the entire guts of the vehicle, striped .... Removed the entire guts of the door, striped the door completely, and we repaired the door shell. The door shell is a complete door assembly. Everything comes on the door, except the handle, the glass, all the fixtures. We repaired that, realigned the entire door frame. And there's a kick panel that we call it so nobody can open the door from the inside, that was completely damaged. That was repaired also. The door was painted, and put all parts back together."
Defendant testified he and Doe broke up two days before the incident on March 16, 2022. He did not invite her to come to his apartment.
He awoke to Doe standing over him demanding to see his phone. He repeatedly asked her to leave. "She stepped back and pulled her hand out of her hoodie and pointed that gun at me." "I grabbed her and I reached for the gun, and she held on for dear life to that gun, hitting me . . . with her left."
"I grabbed her. I grabbed her arm, and I took her and I pinned her down on my couch and I straddled her...." "She kept hitting me, and I'm trying to grab the gun. Once I grabbed the gun, I took the gun from her and I put it in my right pocket. I held both her hands down and I told her to calm down, and she's screaming, we're screaming, and everything, but she eventually calmed down."
Defendant denied strangling Doe, but noted, "I was fighting. We were both fighting. It got bad." He never pointed the gun at her. He never hit her with the gun.
There was a knock on the door. He opened the door; Doe ran out. The police were standing outside. She told them he was holding her hostage.
The police handcuffed him and removed the gun from his pocket. Defendant was upset by the way the police handled the situation: "So that led me to be kicking and cussing out the police, and I admit to that, and I was wrong for that, you know. But I was upset at the time when the situation happened."
The jury "hopelessly deadlocked as to Counts 1 and 2". They found defendant not guilty on counts 3 and 4. The jury convicted defendant of the count 5 offense of vandalism causing over $400 in damages. The court declared a mistrial as to counts 1 and 2.
Over the People's opposition, the court later dismissed both counts.
Defendant thereafter admitted that he had suffered a prior serious felony and prior strike conviction. Defendant additionally admitted aggravating factors that his "prior performance on probation, mandatory supervision, or post release community supervision, parole was unsatisfactory"; that he had a prior robbery conviction, and that his criminal and juvenile delinquency record was "numerous and has increased in seriousness."
The People struck the additional three alleged aggravating factors.
Defense counsel filed a sentencing memorandum and motion to strike defendant's prior strike conviction. Defense counsel contended the court should strike defendant's prior strike conviction and sentence him to probation or the lowest term of imprisonment. The People filed opposition to defendant's request.
At sentencing, the court, in ruling on defendant's motion, noted, "defendant's criminal record is really somewhat significant starting in 2002 with a juvenile record, . . ." "His record from 2010, to present, consists of numerous misdemeanor and felony convictions and conduct, and two prior prison commitments as well. The offenses . . . are numerous," and included crimes of violence. "It does appear to the Court that . . . defendant . . . really does come within the spirit of the three strikes law based on his recidiv[ist] behavior. So the Court cannot find, at this time, that striking the strike would be in the interest of justice. So I will deny the motion at this time."
Over the People's opposition, the court sentenced defendant to an aggregate term of two years eight months of imprisonment, including the low term on count 5, doubled pursuant to the prior strike conviction, and 10 days concurrent on count 6.
II. DISCUSSION
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.
III. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., RAPHAEL J.