Opinion
C088134
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS EVANS MORTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE006694)
Appointed counsel for defendant Nicholas Evans Morton filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with two counts related to his abuse of the victim, who was his girlfriend, and child endangerment. The victim reported to the police that defendant had choked and hit her. She told the officers that defendant was her boyfriend of 15 years and the father of three of her children. She reported that she was sleeping in bed with her youngest daughter when defendant came into the room and was upset because the children had not cleaned their rooms; he became angry, jumped on top of her, and began to choke her until she lost consciousness. She reported that when she regained consciousness, he choked her again. At one point during the struggle, defendant hit her face with an open hand. The victim reported to the officers that when her younger daughter in the bed with her began to cry, her elder daughter came into the room and took the younger daughter away. Her elder daughter then returned and yelled at defendant to get off of her mother. The officer reported that he noted a fresh one-to-two-inch bruise on the victim's neck. The elder daughter was interviewed by the officers and reported that she saw her father choking her mother and that there had been two or three prior similar incidents. While at the residence, the officers observed security cameras and, with the victim's permission, copied 11 minutes of video onto a USB drive.
Prior to trial, the defense filed a motion to suppress evidence, specifically the video from defendant's security cameras that the officers seized with the permission of his girlfriend. The motion was denied, and the video clip was subsequently played for the jury during the trial.
At trial, the victim claimed that none of her children were biologically defendant's and she stayed with defendant regularly but did not live with him; she denied that defendant choked her. Her elder daughter testified that defendant was her mother's previous boyfriend, they dated on and off, and he was not her biological father but she and her siblings referred to him as "dad." She testified that she told the police officers that defendant choked her mother because that is what her mother instructed her to say but did not actually see him choke her. Two officers also testified that they had previously come to defendant's residence for two calls regarding domestic disturbances. An expert witness for the prosecution testified about domestic violence, generally, including the cycle of violence and why victims might recant.
Following the trial, the jury found defendant guilty of inflicting corporal injury resulting in a traumatic condition upon the victim (Pen. Code, § 273.5, subd. (a)). The jury also found true a special allegation that defendant personally inflicted great bodily injury upon the victim under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). The jury found defendant not guilty of child endangerment (§ 273a, subd. (b)).
Undesignated statutory references are to the Penal Code. --------
The trial court found unusual circumstances warranted probation under section 1203, subdivision (e)(3), and the court suspended imposition of sentence and placed defendant on five years' formal probation. As a condition of probation, defendant was ordered to serve 270 days in the Sacramento County jail with credit for time served of 61 days. The court imposed various fines and fees, including a restitution fine in the amount of $400, a $500 payment to domestic violence funds, a $1,000 payment to a battered women's shelter, a $40 court operations assessment fee, and a $30 court facility fee.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BUTZ, J. HOCH, J.