Opinion
E069096
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL JAMES NEWBIGGIN, Defendant and Appellant.
Susan L. Ferguson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. FVI1400267, FVI1500100 & FVI17001271) OPINION APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
While on probation in case Nos. FVI1400267 and FVI1500100, defendant and appellant Nathaniel James Newbiggin beat his wife. Following a jury trial in case No. FVI17001271, defendant was convicted of corporal injury to a spouse with prior convictions (Pen. Code, § 273.5, subds. (a), (f)(1); count 1), dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 2), and disobeying a domestic relations court order (§ 273.6, subd. (a); count 3). Subsequently, the trial court found true that defendant had suffered two prior convictions within the past seven years (§ 273.5, subd. (f)(1)). The trial court also found true that defendant violated his probation in case Nos. FVI1400267 and FVI1500100 by violating the law. As a result, the trial court revoked defendant's probation in case Nos. FVI1400267 and FVI1500100, and sentenced defendant to a total term of five years in state prison with credit for time served. Defendant appeals in all three cases. Based on our independent review of the record, we find no error and affirm the judgment in all three cases.
All future statutory references are to the Penal Code unless otherwise stated. --------
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Case No. FVI1400267
On January 22, 2014, in case No. FVI1400267, a felony complaint was filed charging defendant with four counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 1, 4, 6 & 8), and five counts of resisting an executive officer (§ 69; counts 2, 3, 5, 7 & 9).
On February 4, 2014, pursuant to a plea agreement, defendant pled nolo contendere to count 1. In return, the remaining counts were dismissed, and defendant was placed on formal probation for a period of three years on various terms and conditions of probation.
Approximately a year later, defendant violated his probation by committing another offense. On February 9, 2015, defendant admitted to violating his probation. In return, defendant was reinstated on probation and ordered to serve 365 days in county jail with credit for time served.
On March 23, 2016, defendant admitted to violating his probation again. In return, defendant was reinstated on probation with modified terms and conditions of probation.
On May 12, 2017, a petition to revoke defendant's probation was filed based on defendant's arrest for inflicting corporal injury on a spouse. The petition alleged that defendant violated his probation by (1) violating the law, and (2) failing to cooperate with his probation officer in a plan of rehabilitation and follow all reasonable directives of his probation officer.
B. Case No. FVI1500100
On January 14, 2015, in case No. FVI1500100, a felony complaint was filed charging defendant with battery with serious bodily injury (§ 243, subd. (d)).
On February 9, 2015, the trial court granted the People's motion to amend the complaint to add count 2, a violation of section 245, subdivision (a)(4), assault by means likely to produce great bodily injury. Pursuant to a plea agreement, defendant thereafter pled guilty to count 2. In return, the remaining count was dismissed, and defendant was placed on probation for a period of three years on various terms and conditions of probation.
On May 23, 2017, a petition to revoke defendant's probation was filed based on defendant's arrest for inflicting corporal injury on a spouse. The petition alleged that defendant violated his probation by (1) violating the law, and (2) failing to cooperate with his probation officer in a plan of rehabilitation and follow all reasonable directives of his probation officer.
C. Case No. FVI17001271
On May 5, 2017, defendant was living with his wife and their four-year-old child. At around noon, defendant and his wife began arguing in their bedroom. Defendant told his wife to "shut up," and when she responded "no" he slapped her in the face. Defendant also threw his wife on the bed and choked her. Defendant's wife kicked and punched defendant in self-defense. Defendant's wife attempted to get away. However, defendant continued to hit his wife in the face as she struggled to get away. Defendant's wife was unable to see, and she fell to the floor. Defendant punched her in the back of the head, and they both began crying.
While defendant's wife locked herself in the bathroom, defendant ran to his sister-in-law, who was in the residence, and told her to take his wife to the hospital. Defendant's wife went to the hospital and was treated for broken blood vessels and two black eyes. She could not see out of one eye for a while. At the hospital, defendant's wife spoke to a deputy. The deputy took photographs of defendant's wife's injuries. Defendant's wife told the deputy that she "flipped out" and that she "took a few punches" and defendant "took a few punches."
Defendant's wife weighed 102 pounds. Defendant was 5 foot 11 inches tall, 160 pounds, and trained as a "cage fight[er]" for the "MMA." Defendant and his wife claimed that in the seven years that they were together, this was the only physical altercation between defendant and his wife.
On May 11, 2017, defendant's wife obtained a no-contact restraining order and served it on defendant while he was in jail. Defendant continued to call his wife from jail and sent her a letter about two weeks after the incident. In the letter, defendant denied the allegations. He also told his wife that he would give her " 'whatever' " she wanted if she did not follow through with her " 'well played lie.' " Defendant's wife understood this statement as defendant attempting to persuade her to lie about the incident. Defendant also told his wife over the phone not to appear at the trial. In recorded phone calls from jail, defendant told his wife to say that she fell down and that he was trying to catch her when his fingers accidently jabbed her in the eyes. Defendant also told her to "Make a logical explanation" or to say that she was an alcoholic and got into a bar fight.
Defendant testified on his own behalf. He explained that his wife punched him four times before he slapped her. She then hit him two more times and he slapped her again. Defendant denied choking his wife or throwing her on the bed, and said he hit her with an open hand. Defendant admitted to sustaining two prior felony convictions involving moral turpitude in 2014 and 2015. He also admitted to contacting his wife in violation of the restraining order and telling the deputy that the argument was verbal. In addition, defendant claimed that some of the things he told his wife to say in the recorded conversations were lies.
On May 23, 2017, an information was filed charging defendant with corporal injury on a spouse with prior convictions (§ 273.5, subds. (a), (f)(1); count 1), dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 2), and misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a); count 3).
On August 8, 2017, following a jury trial, defendant was convicted on all counts. On that same day, in a bifurcated proceeding, the trial court found true that defendant had suffered two prior convictions. The court also found true that defendant violated his probation in case Nos. FVI1400267 and FVI1500100 by violating the law. The court dismissed the remaining allegations in the petitions to revoke defendant's probation in case Nos. FVI1400267 and FVI1500100 that defendant failed to follow and cooperate with all reasonable directives of his probation officer.
Defendant's sentencing hearing in all three cases was held on September 1, 2017. In case No. FVI17001271, defendant was sentenced to a total term of five years in state prison with 234 days of credit for time served as follows: five years on count 1, 16 months on count 2 to run concurrent to count 1, and 120 days on count 3 to run concurrent to count 1. In case No. FVI1500100, the trial court revoked defendant's probation and sentenced him to two years in state prison to be served concurrently with case No. FVI17001271. In case No. FVI1500100, defendant was awarded 670 days of credit for time served. The trial court also revoked defendant's probation in case No. FVI1400267, and sentenced defendant to two years in state prison to be served concurrently with case No. FVI17001271. In case No. FVI1400267, defendant was awarded 694 days of credit for time served.
On September 5, 2017, defendant filed a timely notice of appeal in all three cases.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, 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 summary of the facts and any potential arguable issues, and a request that this court conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed in case Nos. FVI1400267, FVI1500100, and FVI17001271.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.