Opinion
E066323
03-07-2017
THE PEOPLE, Plaintiff and Respondent, v. SEAN ROBERT SOTO, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1500389) OPINION APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
The jury convicted defendant and appellant, Sean Robert Soto, of inflicting injury on a fellow parent resulting in a traumatic condition. (Pen. Code, § 273.5, subd. (a); count 1.) The court sentenced defendant to the aggravated term of four years' imprisonment.
All further statutory references are to the Penal Code unless otherwise indicated.
After defense counsel filed a notice of appeal, 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 statement of the facts, and identifying five potentially arguable issues: (1) whether the court erred by admitting evidence of a prior domestic violence incident involving defendant and the victim; (2) whether the court's limiting instruction on the prior domestic violence incident unconstitutionally reduced the prosecution's burden of proof; (3) whether the court erred in declining to instruct the jury on self-defense and mutual combat; (4) whether the court properly instructed the jury with CALCRIM No. 372, the flight instruction; and (5) whether the court gave proper reasons for sentencing defendant to the upper term. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The People charged defendant by felony information with unlawful corporal injury (§ 273.5, subd. (a); count 1) and battery (§ 242; count 2). The People additionally alleged defendant had personally inflicted great bodily injury on the victim in the count 1 offense. (§§ 12022.7, subd. (e), 1192.7, subd.(c)(8).) The People gave defendant notice that they would seek to admit evidence of defendant's prior acts of domestic violence.
The People later moved to admit two prior incidents of alleged domestic violence involving defendant and the victim. Defendant filed opposition. Prior to trial, the court ruled that evidence of one of the alleged prior incidents of domestic violence, the one previously reported to the police, would be admissible; the other would not.
At trial, the victim testified that defendant is the father of her son; defendant and the victim had previously lived with one another. On January 31, 2015, defendant arrived at her residence around 11:00 a.m. to visit with his son. Defendant was intoxicated; the victim told defendant she would not let him take their son due to his intoxication. The victim told him to leave. Defendant became upset and angry.
Defendant shoved the victim to the ground. The victim's then 16-year-old nephew grabbed defendant and held him down on the bed. Defendant pushed the victim's nephew off him, punched him with a closed fist, and kicked him. The victim got up and ineffectually attempted to punch defendant; she then gently attempted to move him out of the way as she ran outside.
The victim's nephew was the victim alleged in the count 2 offense of which the jury acquitted defendant. --------
Outside, defendant shoved the victim to the ground. Defendant got on top of her and began punching her in the face, stomach, and ribs repeatedly. The victim tried to fight him off; she yelled for help. One neighbor heard arguing and saw the victim and defendant fighting. A couple of other neighbors came and beat defendant off her. Defendant ran off.
The police arrived thereafter. An officer located defendant walking a couple of blocks from the residence. Another officer testified the victim was "upset," "hysterical," "crying, [and] frantic." She had sustained bleeding on her face and mouth, facial and body bruises, and one of her teeth was cracked.
Several years earlier, the victim had read defendant's text messages while he was sleeping and discovered he was cheating on her. Defendant woke, shoved her away, pulled her hair, got her on the ground, and hit her.
Defense counsel requested the court to provide the jury with instructions on self-defense and mutual combat. The court denied the request because "I've heard no evidence of either that would be sufficient to grant those or to give those jury instructions." Over defense counsel's objection, the court granted the People's request to provide the jury with CALCRIM No. 372, the flight instruction. The court also provided the jury with CALCRIM No. 852, the standard pattern jury instruction regarding evidence of uncharged incidents of domestic violence.
At sentencing, the court noted the aggravating circumstances outweighed the mitigating circumstances. The court observed there was great violence and the threat of great bodily harm: "My concern is that the testimony was that she got hit in the neighborhood of 30 times . . . . [T]here was certainly an opportunity to cease it." "Just the high degree of cruelty and viciousness kind of bothers me. Not kind of; it does."
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. HOLLENHORST
J.