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The People v. Robert James Menefee

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 17, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT JAMES MENEFEE, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Cantil-sakauye ,j.

P. v. Menefee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sacramento)

Defendant Robert James Menefee was convicted by a jury of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),*fn1 making a criminal threat (§ 422), violating a protective order (§ 273.6), and attempting to prevent and dissuade a victim/witness from making a report. (§ 136.1, subd. (b)(1).) In a bifurcated court trial, defendant was found to have a prior serious felony conviction for first degree burglary subjecting him to the provisions of section 667, subdivisions (a), (b)-(i), and section 1170.12. The trial court sentenced defendant to state prison for the upper term of four years on his corporal injury on a spouse conviction, doubled to eight years based on his prior strike; a consecutive one-third of the middle term (eight months) for his criminal threat conviction, doubled for the strike to 16 months; and a consecutive term of five years for the section 667, subdivision (a) enhancement, for a total prison term of 14 years four months. The trial court imposed 146 days of concurrent jail time for defendant's two misdemeanor convictions.

On appeal, defendant makes multiple assertions of error: (1) the trial court's admission of two 911 calls; (2) the trial court's denial of his motion for new trial, including the denial of his request for a trial transcript to assist substitute defense counsel in bringing the new trial motion; (3) ineffective assistance of counsel involving numerous claims; (4) insufficiency of the evidence to support his felony corporal injury on a spouse and criminal threat convictions or, in the alternative, that the trial court abused its discretion in refusing to reduce them to misdemeanors; and (5) abuse of discretion by the trial court in imposing the upper term sentence. We shall affirm the judgment.

FACTUAL BACKGROUND

Defendant and Okimma Menefee*fn2 were married in September 2004. They separated in May 2006 after Okimma discovered that defendant was cheating on her. For two weeks they argued about Okimma's wanting, and defendant's refusing, a divorce until one morning Okimma woke up to an angry defendant, who started to hit her repeatedly with his belt. When defendant left the room, Okimma thought he was going to get a gun. She ran to another room in their house and went out a window onto the garage roof. She fell to the ground, hurting her arm and ankle. She was taken to the hospital. She had welts on her body from being hit with the belt. Okimma went to live with her mother.

In November 2006, defendant was present in court when a three-year protective order was issued. Among other things, the order stated defendant "must not annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal property of, or otherwise disturb the peace of . . . Okimma Menefee."

Defendant continued to contact Okimma several times a day and to drop by Okimma's mother's house to see her. The week before September 10, 2007, Okimma stopped answering defendant's calls and refused to see him.

Normally after Okimma finished work at her job as a medical assistant for Sutter Memorial, her co-worker Leisa Diciolla would walk Okimma to her car. On September 10, 2007, Diciolla left early. Another co-worker, Latoya Coleman, walked with Okimma to the parking lot. Coleman was good friends with Okimma and was also a friend of defendant.

As Okimma and Coleman approached Okimma's car, they noticed defendant was in a gray Mustang parked next to Okimma's car. When defendant saw Okimma, he got out of the car and yelled at her, "Is this how it's gonna be? . . . [Y]ou can't return my phone calls or my texts?" Okimma told him she was busy and that the relationship was over. Defendant kept coming towards her. Okimma told defendant he was not supposed to be there. Defendant told her she was going to get in the car and go with him. Okimma told defendant she had to take Coleman home, although this was just a ruse to get away from defendant. Defendant told her she was either coming with him or he was going with her. Okimma told defendant he would have to come with them, but as defendant turned back to the Mustang to get something, Okimma tried to get in her car and close the door.

Defendant opened Okimma's door and reached across her body to snatch her car keys from the ignition. Okimma and Coleman testified to slightly different versions of what happened next.

According to Coleman, Okimma instructed Coleman to call the police. Coleman tried, but defendant reached over Okimma and tried to grab Coleman's cell phone. Defendant moved around to the passenger side of Okimma's car and Coleman got out of the car. Defendant took her place in the passenger seat. He told Coleman that if she called the police he would hit Okimma. After a pause, defendant started to hit Okimma. Coleman was shocked. Although she had heard defendant threaten Okimma in the past, this was the first time she saw him hit her. Coleman tried to grab him and pull him away. Defendant got out of the car and said to Coleman and Okimma: "If you call the police I know where you live." Coleman took his threat seriously. She knew he had been on her street one time and that several times he showed up uninvited when she was with Okimma. She was afraid he would hurt her. Defendant left.

In Okimma's version, Coleman was outside the car, yelling for defendant to give back the car keys. Defendant went back to his car and replied that Okimma could get home the best way she could and proceeded to move the Mustang behind Okimma's car. Okimma told Coleman to get in the car and said they could call 911. Defendant got out of the Mustang and walked up to Coleman. He asked if she was calling the police on him. Coleman yelled out the license plate number of the Mustang. Defendant touched Coleman on the arm and her shirt. He told her if she called the police on him, he would hit Okimma. Coleman picked up her cell phone, which she had dropped, and started to call. Defendant then started hitting Okimma. Defendant hit her in the face one or two times before she was able to get her arms over head to block his blows. Defendant hit her on the back of her head and on her arms. He hit her about 15 times as hard as he could. Okimma screamed for help. When defendant stopped, he threw her keys down, and said: "If I go to jail, I know where you live." He pointed at Okimma and Coleman and said, "I know where your mom live[s] and I know where you live, too." Then defendant got in the Mustang and left. Okimma was afraid for her life.

Alice Pedersen happened to be at Sutter Memorial Hospital for her annual doctor's visit on September 10, 2007. As she was getting ready to get into her car in the parking lot, she heard voices screaming. She heard a woman saying, "help, help." She walked towards the voices to see what was going on. She saw a male inside the driver's side door of a car. His full body was lunged inside the window of the car. Pedersen tried to call 911, but got a busy signal.

At that point, the man walked back to his car, a silver Mustang. The man backed the Mustang up and stopped behind the first car. Pedersen walked closer and saw the man now lunging inside the passenger side of the car. The woman that had been the passenger was yelling, "Leave her alone." She yelled his name and said, "What has happened to you?" or "What is wrong with you?" "I don't recognize you anymore." Pedersen heard the woman inside screaming. She sounded scared. As people started coming out of the medical building, the man got in his car and drove away. Pedersen positioned herself to see the car and noted its license plate number. She went upstairs to the doctor's office and reported it.

Defendant fit the description of the man Pedersen saw and she felt his eyes looked the same. She was not, however, able to identify defendant at trial as the man she saw. She testified there was nothing about defendant that precluded him from being the same man.

After defendant left, Coleman and Okimma returned to their work office. Coleman called the police and, with the permission of her supervisor Debbie Young, used Young's name on the 911 call in order to protect herself. She was afraid defendant would harm her.

Coleman, Young, and the Sutter Memorial Foundation regional manager, Jennifer Kubasek, all noticed Okimma was hurt. Okimma's eye was red and a bruise was forming under the eye. She had blood on her shirt and a busted lip. She was complaining of an injury to her arm, which was swollen and numb. Coleman, Young, Kubasek, and another co-worker helped Okimma to the emergency room of the hospital. A radiologist described the injury to the forearm as mild soft tissue swelling in one spot. Medical records regarding her hospital treatment were admitted. The police officer who saw Okimma at the emergency room also noted Okimma had a small cut on the inside of her mouth, bruising around her eye, and some swelling on her left forearm. She had a small amount of blood on her shirt.

A couple of hours later, as Coleman left the emergency room, she saw defendant outside. He was in the passenger seat of a different car, which was being driven by a female. He was ducking down. Coleman called 911 again because she was afraid defendant would hurt her or Okimma. Officers responded and followed Coleman and Okimma to the freeway to make sure they were okay.

About this same time, defendant called Okimma's mother, Rose Woodward. Defendant told Woodward that he jumped on her daughter and that he felt good about it. He said he had to put hands on her daughter, but now he felt okay and could leave her alone. Woodward had talked to defendant in the past about his hitting her daughter because she had seen bruises on Okimma and her grandchildren had told her what had been happening. Woodward was afraid of defendant and did not trust him.

About half an hour after Coleman saw defendant in the emergency room parking lot, defendant called Coleman and asked about Okimma's condition. He asked if they had called the police. Coleman did not tell him they had. She was afraid.

Okimma testified to incidents of prior abuse by defendant, claiming that he had assaulted her more times than she could remember. She estimated there were 15 incidents of assault, but prior to the May 2006 incident, it was always with just his hands. She claimed defendant had choked her about five times and one time he threw hot water on her when she was dressing to go out with a co-worker. She had tried to leave defendant, but he would not let her.

Coleman testified Okimma was aware defendant was seeing other women after they separated. She did not seem upset or jealous.

On October 4, 2007, a Sacramento police officer stopped a Chevy Capri for having a loud stereo. Defendant was driving the Capri with Ashley Rosales as a passenger. Defendant ran and was discovered an hour later in a house, hiding under a bed with the police canine on him. Defendant had changed his clothes and taken a shower in the belief it would make it harder for the police canine to find him.

The essence of defendant's defense was that Okimma was jealous and made something up to get defendant in trouble. The defense called Ashley Rosales and her mother to testify that Okimma came to Rosales's house demanding to confront Rosales about her relationship with defendant and Okimma appeared at Rosales's workplace wanting to engage Ashley in a fight. Although Rosales never mentioned it to police at the time, Rosales also claimed she was attacked by Simona Archie, a prostitute, Okimma, and another woman shortly after defendant was arrested in October 2007. (The prosecution introduced time cards showing Okimma was at work during the time of the attack.) Rosales started dating defendant in early 2006, discovered she was pregnant in August 2007, and testified she loved defendant with all her heart.

Rosales admitted she had been convicted of a misdemeanor crime of moral turpitude. During cross-examination, Rosales admitted to engaging in acts of prostitution. A portion of a taped jail call from defendant to Rosales was played in which defendant berated Rosales about being arrested for prostitution in his truck. Comments made during the conversation suggested Rosales was engaging in prostitution on defendant's instructions.

DISCUSSION

I.

The Trial Court did not Abuse its Discretion in Admitting the 911 Calls Made by Coleman On September 10, 2007, Coleman made two telephone calls to emergency 911. The trial court ruled the calls were admissible over the defense objection that they did not qualify as spontaneous declarations. (Evid. Code, § 1240.) Defendant claims on appeal the trial court abused its discretion in so ruling. Defendant also complains "[t]he calls contained information about prior acts and threats that were not relevant to the purpose of the introduction of the 911 calls." We find no abuse of discretion in the admission of the complete calls.

Evidence Code section 1240 provides:

"Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

"(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

"(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."

"'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.'" (People v. Poggi (1988) 45 Cal.3d 306, 318, quoting Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468.)

Whether Coleman's statement met the requirements of a spontaneous declaration presents a question of fact over which the trial court exercises its reasonable discretion. (People v. Smith (2007) 40 Cal.4th 483, 519.) We review the factual determinations for substantial evidence and the ultimate decision of whether to admit the evidence for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)

The key factor that makes a statement spontaneous is "the mental state of the speaker." (People v. Farmer (1989) 47 Cal.3d 888, 903, disapproved on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The intent of the exception is to allow out-of-court statements that are "undertaken without deliberation or reflection." (Farmer, supra, at p. 903.) The passage of time does not deprive the statement of the required spontaneity if it was made under the stress of excitement while the reflective powers were in abeyance. (People v. Brown (2003) 31 Cal.4th 518, 541.) "'The nature of the utterance--how long it was made after the startling incident and whether the speaker blurted it out, for example--may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.' [Citation.]" (Ibid.)

Coleman's first 911 call was made approximately 15 minutes after defendant's assault on Okimma. In it Coleman tells the 911 operator that she is at her job, that her "friend just got attacked by her--her husband up here really bad in the parking lot. And he tried to attack me. And she's inside the, um--at Sutter--by Sutter Memorial Hospital. . . . She's inside one of the offices but he's threatened to come to her mom's house and--and kill her and threaten me and I'm scared to leave and we . . . ." Then answering the operators questions, Coleman goes on to name and describe defendant and the Mustang he was driving. Coleman does not want her name used and asks the operator to put down Young's name as the person who called. Coleman notifies the operator that Okimma is injured and that there is a restraining order in effect.

Coleman's second 911 call was made several hours later, just after 8:00 p.m. In it Coleman references the prior altercation and tells the California Highway Patrol (CHP) 911 operator that "her friend is being discharged but her husband is roaming outside the parking lot." Coleman states she is scared and gives her name as "Debbie Young." She says she does not want to be identified because of defendant's threats. The CHP operator transfers the call to the Sacramento Police emergency call center. Coleman then briefly describes the earlier incident with defendant in the parking lot to this operator and reports that she has just seen defendant in a different vehicle "roaming the emergency parking lot." She is worried that defendant is still in the area. Coleman says she is about to pick Okimma up from the emergency room to take her home and is afraid something will happen.

Although the prosecution and the defense disagreed over whether Coleman sounded excited during these calls, the trial court issued a written ruling regarding the prosecution's motion in limine to admit the 911 calls in which it stated it had listened to the calls and expressly considered "the tenor, context, and scope" of each call. Relying on the "emergent nature" of each call, the court granted the prosecution's motion over defendant's objection.

We find no error. Our review of the record shows the calls were made either shortly after or during the events being reported. Coleman was upset and scared by the events that she was relaying to the authorities. She was frightened enough that she did not even want to be identified on the calls. As our record does not include the 911 tapes, we are not able to separately assess Coleman's tone of voice or demeanor, but the record reflects the trial court did listen to the tapes and did consider such matters. We presume the tapes support the trial court's ruling. Thus, substantial evidence supports a conclusion that the calls were "undertaken without deliberation or reflection." (People v. Farmer, supra, 47 Cal.3d at p. 903.) The trial court did not abuse its discretion in admitting the calls.

Nor was defendant prejudiced by the admission of the complete calls because they contained information about "prior acts and threats," as defendant now claims. The only prior acts and threats by defendant described by Coleman in the calls were those that occurred during the assault of Okimma in the parking lot. Such acts and threats were the subject of the first call and were referenced as context for Coleman's fear of defendant in the second call.

II.

The Record Does not Establish any Ineffective Assistance of Defense Counsel

After the jury returned the verdicts against defendant, defendant substituted counsel. Substituted counsel, who is the same attorney representing defendant on appeal, subsequently brought a motion for new trial based in part on claims of ineffective assistance of defendant's trial counsel. The trial court denied substituted counsel's request for a full or partial transcript of the trial to assist counsel in bringing the new trial motion. After a hearing during which defendant's trial counsel testified, the court denied the motion for new trial.

On appeal, defendant claims the trial court error in denying his request for a transcript and in denying his motion for new trial. Defendant also separately asserts his trial counsel provided ineffective assistance of counsel in a number of ways. As these claims are interrelated, we find it easier to consider first the merits of whether defendant's counsel was ineffective.

A. Trial defense counsel was not ineffective for failing to procure a handwriting expert in time for trial.

At defendant's preliminary hearing Okimma admitted she visited defendant in jail and had written him at least one letter. Okimma identified her handwriting on an envelope shown to her by the defense. She denied, however, that she had sent defendant a handwritten letter in the envelope, claiming the letter she sent was typed. Okimma then provided a writing sample consisting of the phrase "Hey, what's up" written quickly, multiple times. Okimma was questioned about and denied writing a handwritten letter in the possession of the defense which the defense claimed was written by her. The unsigned handwritten letter crudely expressed anger and vindictiveness towards defendant and Rosales based on their relationship. The letter also intimated the writer participated in the October 2007 attack on Rosales by Archie, which Okimma denied.

On the first day of trial, defendant made an ex parte motion for appointment of a handwriting expert to be paid at government expense based on his indigency. The trial court denied the motion as untimely. Several days into trial, defendant filed another motion for appointment of a handwriting expert at government expense. Finding defendant had not shown good cause for the appointment, the court again denied the motion. Defendant claims on appeal his trial counsel's failure to procure a handwriting expert in time for trial was ineffective assistance of counsel.

"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674].)" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 (Scott).) "'If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.'" (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt).)

Here the record discloses trial defense counsel identified and contacted a handwriting expert before defendant's trial was first commenced before a different assigned judge. In a declaration accompanying a motion to trail defendant's trial, defense counsel indicated he had spoken to the handwriting expert, but the expert was unwilling to accept the amount of money that was approved by the county to assist defendant based on his indigency. Defense counsel stated defendant needed more time to procure the additional money needed. Defendant's trial ended up being continued and was eventually reset. In the interim, defense counsel continued to have frequent contact with the expert witness, who was available for the additional fee. Defendant, who was out of custody at the time, represented to counsel that he could get work and pay the difference between the expert's fee and the amount the county was willing to pay. Apparently this did not happen because defense counsel again moved to have the expert appointed at government expense on the first day of his reset trial. As stated, the trial court denied the motion as untimely.

Defense counsel did not provide ineffective assistance of counsel, as defendant now claims, by failing to bring the motion earlier. Counsel cannot be faulted for not bringing a motion premised on defendant's inability to afford the expert's fee when defendant himself told counsel he could earn the money necessary for the fee. Counsel's performance did not fall below an objective standard of reasonableness.

B. Defendant has not shown ineffective assistance of counsel in the failure of defense counsel to utilize Evidence Code section 1417.

Evidence Code section 1417 (section 1417) provides, in pertinent part, that "[t]he genuineness of handwriting, . . . , may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered." Under this provision, a jury in a criminal case may determine the genuineness of questioned handwriting by comparing it to a true exemplar of the person's handwriting. (People v. Rodriguez (2005) 133 Cal.App.4th 545, 552-553.)

At the hearing on defendant's motion for new trial, defendant's trial counsel testified that he was unaware of the option under section 1417 to have the jury compare Okimma's admitted handwriting on the envelope with the handwritten letter to determine if Okimma wrote the letter. He testified he thought an expert was needed and failed to do any research on the issue.

Defendant claims on appeal ineffective assistance of counsel.

Although defense counsel's admission of his ignorance and lack of research reflects a failure to meet an objectively reasonable standard of professional conduct, his deficient performance was not prejudicial. The handwriting on the envelope, which Okimma admitted was hers, bears no resemblance at all to the handwriting exemplar she produced at the preliminary hearing. The handwriting on the envelope bears superficial resemblance to the handwriting in the letter, however, there are numerous obvious distinctions in the formation and joinder of the letters, which undoubtedly would have been pointed out to the jury by the prosecution. It is unlikely the jury would have concluded Okimma's testimony that she did not write the letter was false.

Moreover, even if the jury were to conclude Okimma wrote the letter, it is still not reasonably probable that the jury would have reached a result more favorable to the defendant. (Scott, supra, 15 Cal.4th at p. 1212.) The evidence in this case was simply overwhelming. Not only were the facts of the attack and threats by defendant testified to by Okimma, they were testified to by defendant's friend Coleman and for the most part by Pedersen, a neutral eyewitness. Okimma and Coleman identified defendant as the attacker and Pedersen, the independent witness, gave a description of the attacker that fit defendant. Okimma's injuries from the attack were witnessed by Coleman, her supervisor, her regional manager, and the responding police officer. The hospital radiologist confirmed the injury to Coleman's arm. Medical records regarding her hospital treatment were admitted. Shortly after the attack, defendant called his mother-in-law and admitted he had jumped Okimma and felt good about it. Defendant also called Coleman and asked about Okimma's condition and whether they had called the police. Defendant fled when he was subsequently stopped by police. Defendant had engaged in numerous prior acts of domestic violence against Okimma. That Okimma had fabricated the attack by defendant was an implausible defense presented through a witness whose credibility was strongly suspect.

Defendant has not shown he received ineffective assistance of counsel. (Holt, supra, 15 Cal.4th at p. 703.)

C. Defendant has not shown ineffective assistance of counsel in the failure of defense counsel to listen to the tape recording of the conversation between Rosales and defendant.

In a declaration filed with defendant's motion for new trial, defendant's trial counsel stated he received a number of audio CDs from the prosecution in pretrial discovery, but he listened only to portions of them. Instead, he gave them to defendant with the request that defendant listen to them all and report back if there was anything to be concerned about. The first time he learned about the existence of the tape recording of defendant yelling at Rosales for getting arrested for prostitution was during trial. Defense counsel testified that if he had listened to the tape earlier, he would not have called Rosales as a witness.

Defendant contends on appeal that he received ineffective assistance of counsel when defense counsel failed to listen to the tape recording. We disagree.

While defense counsel's failure to review the discovery provided by the prosecution reflects deficient performance of his professional duties, such failure was not prejudicial on this record.

To begin with, we are skeptical of counsel's claim that his knowledge of the tape recording would have made the difference in his decision to call Rosales as a witness. Rosales was critical to defendant's defense that Okimma was making false accusations against him out of jealousy. Putting only Rosales' mother on the stand to testify to Okimma's jealousy of Rosales would have been a weak substitute for Rosales. But even accepting defense counsel's claim that he would not have called Rosales as a witness if he had known about the tape, we reject the claim that if Rosales had not testified and the tape had not been played, there is a reasonable probability the jury would have reached different verdicts. As we have described, the evidence against defendant was incredibly strong and without the testimony of Rosales, defendant would certainly still have been convicted.

D. Defendant has not shown ineffective assistance of counsel in defense counsel's failure to realize medical records had been admitted into evidence.

During closing argument, defendant's trial counsel argued the prosecution had failed to show Okimma suffered any real injuries from the alleged assault. Counsel claimed the radiologist testified she had slight swelling, which could have been normal for her, and the photographs only showed her eye might be a little red, but nothing else was introduced. Counsel argued that nothing linked the evidence of how the injuries were alleged to have occurred to the insignificant injuries, if there were injuries. Defense counsel asked: "Where are the medical records?"

In rebuttal argument, the prosecution pointed out that medical records reflecting Okimma's treatment at the hospital, including a nurse's observations of her injuries, had been introduced into evidence.

Outside the presence of the jury, defense counsel complained that he did not realize the medical records had been introduced into evidence. Counsel repeated in his testimony at the hearing on defendant's motion for new trial that he "just didn't know that those medical records had been admitted."

Defendant claims defense counsel's failure to be aware of what records had been admitted led to inappropriate arguments during his closing statement, which amounted to ineffective assistance of counsel. The contention has no merit.

While it is embarrassing that defense counsel was ignorant of what evidence had been introduced through the exhibits, the jury was instructed that nothing said by the attorneys in argument was evidence. (CALCRIM No. 222.) Defendant did not suffer prejudice from his trial counsel's argument. (Holt, supra, 15 Cal.4th at p. 703.)

E. Defendant has not shown ineffective assistance of counsel in defense counsel's eliciting from Okimma that defendant had been on parole.

In May 2006, defendant angrily hit Okimma with a belt. After the incident, Okimma gave statements regarding the incident to both a defense investigator and defendant's parole agent. In both her statements, Okimma said defendant accidentally hit her with his belt and that he was not violent.

The trial court granted defendant's pretrial motion to exclude any mention of defendant's parole status.

At trial Okimma testified to the May 2006 incident. Okimma admitted her statement to the defense investigator, but said it was untrue. She testified defendant had told her what to say to the defense investigator. Asked by the prosecutor if she knew why defendant wanted her to give this report, Okimma replied it was because she had given another report to defendant's parole officer. Defendant's objection was sustained and the jury was instructed to disregard the question and answer. Okimma then explained that defendant wanted her to give the statement so that he could be released from custody and that he promised to leave her alone if he got out.

On cross-examination, Okimma was asked about her prior statement to the defense investigator and if she remembered recently telling a victim's advocate that she gave the statement because defendant was out of custody and she was afraid of what he might do. Okimma replied that she had her statement to the defense investigator mixed up with her statement to the parole officer; she gave the former statement when defendant was out of custody and present. She thought she was being asked about the statement she gave to defendant's parole officer.

Outside the presence of the jury, defendant objected to Okimma's further mention of his parole status in violation of the court's order. The trial court reviewed a transcript of the relevant portion of cross-examination and determined that defense counsel's question lacked clarity and invited the response.

Defendant now claims his counsel's inarticulate questioning amounted to ineffective assistance of counsel.

Defendant fails to establish either prong of the test. Defense counsel's unclear phrasing of the question to Okimma is the kind of mistake that can occur in the heat of any trial. Defendant's right to effective assistance of counsel is not a right to perfect assistance. That counsel posed an unclear question resulting in an unintended response does not fall below the standard of a reasonably competent attorney. And even if in this case it did, there is no reasonable probability that in the absence of Okimma's response regarding defendant's parole status a result more favorable to defendant would have been reached by the jury.

F. Defendant has not shown ineffective assistance of counsel in defense counsel's subsequent questioning of Okimma regarding defendant's parole status.

After inadvertently eliciting Okimma's response regarding defendant's parole status, as just discussed, defendant claims defense counsel compounded his error by persistently pursuing the subject several more times. At one point, the questioning resulted in Okimma responding that "he's been on parole ever since I've known him." Defendant claims ineffective assistance of counsel.

In reviewing a claim of ineffective assistance of counsel "[t]here is a '"strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"' [Citations.]" (People v. Burnett (1999) 71 Cal.App.4th 151, 180.) A defendant claiming ineffective assistance of counsel on direct appeal will not prevail unless the record affirmatively discloses the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.) Trial counsel's decisionmaking is reviewed in light of the available facts and tactical errors are generally not deemed reversible. (People v. Hinton (2006) 37 Cal.4th 839, 876.)

After the evidence of defendant's parole status was in evidence, the record reflects defense counsel's further questioning was likely the result of a reasonable tactical decision. To mitigate the possible prejudice to defendant, it appears defense counsel tried to show that defendant was on parole for simple possession of narcotics, not a violent offense, and that Okimma had a record of trying to get defendant in trouble by making false accusations to defendant's parole officer. Defense counsel tried to impeach Okimma by establishing she made different statements about the May 2006 incident to various investigators. As a reasonable strategic choice, counsel's questioning did not fall below an objectively reasonable standard of professional conduct. Defendant has not shown ineffective assistance of counsel.

G. Defendant has not shown ineffective assistance of counsel in defense counsel's cross-examination of Okimma about defendant's prior acts.

Defendant contends he received ineffective assistance of counsel when defense counsel questioned Okimma regarding defendant's prior acts of domestic violence, bringing out details that were "explicit about the intensity of those prior acts."

Defendant admits the cross-examination was an attempt to impeach Okimma about her claim that in the May 2006 incident defendant may have gone to get a gun. In fact it appears the cross-examination may have been part of a larger strategy to demonstrate inconsistencies in Okimma's statements about the prior incidents and to show that her description of defendant's conduct grew in the telling when Okimma wanted to get defendant in trouble. Defense counsel's questioning sought to fundamentally undermine Okimma's credibility. Ineffective assistance of counsel cannot be predicated on counsel's reasonable, albeit unsuccessful, tactical choices. (People v. Mitcham (1992) 1 Cal.4th 1027, 1080-1082; People v. Pope (1979) 23 Cal.3d 412, 425.)

H. Defendant has not shown ineffective assistance of counsel in defense counsel's failure to assert the clergy/penitent privilege (Evidence Code section 1033) for Woodward's testimony.

Okimma's mother, Woodward, testified defendant called her on September 10, 2007. Defendant told Woodward that he jumped on her daughter and that he felt good about it. He said he had to put hands on her daughter, but now he felt okay and could leave her alone.

Based on the fact that Woodward is an ordained minister and her testimony that when she talked to defendant she tried to counsel him, defendant claims defense counsel was ineffective in failing to assert the clergy penitent privilege under Evidence Code section 1033. Section 1033 provides, in pertinent part, that "a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege."

Evidence Code section 1032 defines "penitential communication" for purposes of the privilege as "a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret." (Italics added; see Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1516.)

There is nothing in the record that reflects defendant phoned Woodward in her capacity as a pastor to communicate with her in confidence. Rather, it appears defendant called Woodward as Okimma's mother to communicate to her and Okimma that now that he had jumped Okimma and laid hands on her, he felt good, and he would now be able to leave Okimma alone. (Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 445 ["The fact both parties to the original communication knew it likely would be transmitted to a third person vitiated ab initio any privilege under Evidence Code section 1032, or, alternatively, constituted a waiver of the privilege under Evidence Code section 912, subdivision (a)"].) Therefore, an assertion of the clergy penitent privilege would not have been successful. It was not incumbent on defense counsel to raise a meritless argument. (People v. Mitcham, supra, 1 Cal.4th at p. 1080; People v. Constancio (1974) 42 Cal.App.3d 533, 546 ["It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel[]"].)

I. Defendant has not shown ineffective assistance of counsel in defense counsel's failure to object to the giving of an instruction relating to defendant's absence at trial.

During the course of trial, the trial court remanded defendant into custody to protect Okimma. After defendant was inadvertently released from jail, he failed to appear for the remainder of the trial proceedings despite his counsel's efforts to urge his appearance. The prosecution submitted a motion in limine requesting the court instruct the jury with a "flight" instruction directed to defendant's absence. Defense counsel told the court that he had no objection if the prosecutor commented in argument about defendant's absence because he also intended to address it before the jury. However, defense counsel objected because he felt there were adequate instructions for the issue and there was no need for another specific instruction directed to defendant's trial absence.

During his closing argument, defense counsel made a brief reference to defendant's absence. Counsel asked "Why is Robert Menefee not guilty? For the same reason that he's not here. He's not guilty because he has never assaulted Okimma Menefee, and he has gotten nothing but trouble from Okimma telling people that he has." The trial court instructed the jury as follows: "The fact that the defendant has been absent for part of the jury trial is not evidence but you can consider it."

Defendant now claims ineffective assistance of counsel in defense counsel's failure to object to the giving of the instruction.

The record reflects defense counsel did object to the instruction on the ground that it was unnecessary. Counsel did not, however, object to it on the ground that it was erroneous. We understand defendant's argument on appeal to be that counsel should have objected on the latter basis.

We agree the instruction given by the court is cryptic. It instructs the jury that defendant's absence is not evidence, but then tells the jury it can consider it. This contradicts the jury instruction that told the jury that it "must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. 'Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." (CALCRIM No. 222, italics added.) We need not belabor this point or express our view on People v. Snyder (1976) 56 Cal.App.3d 195, which the People claim supports the giving of the instruction.

Even assuming arguendo the instruction is erroneous and defense counsel should have objected to it, we conclude defendant could have suffered no prejudice from it. Since the evidence properly considered by the jury was overwhelmingly against defendant, the giving of the ambiguous instruction regarding defendant's absence was entirely unlikely to have affected the outcome of the trial. We find no ineffective assistance of counsel.

J. Defendant has not shown ineffective assistance of counsel in defense counsel's failure to fully advise him of the potential sentencing consequences of his prior conviction.

The information against defendant alleged he had a prior conviction for first degree burglary (a strike) which brought him within the Penal Code provisions that provide for (1) the doubling of the term of imprisonment he received if convicted of the charged felony corporal injury on a spouse and/or criminal threats (§ 667, subd. (e)(1)), and (2) the imposition of an additional five-year term of imprisonment if he was convicted of criminal threats. (§ 667, subd. (a); 1192.7, subd. (c)(38).)

In his declaration filed in support of defendant's new trial motion, defense counsel stated he had failed to adequately advise defendant of his potential exposure to the five-year enhancement. Defense counsel declared that during trial the prosecutor modified a prior offer to a non-prison offer, but counsel again failed to mention the five-year enhancement. Defense counsel declared defendant's potential exposure to the enhancement would surely have affected defendant's calculation of whether to take the prosecution's offer. Defendant submitted a declaration in which he stated he would have taken a prosecution offer of a total of four years but for the failure of defense counsel to advise him of the five-year enhancement.

On appeal, defendant claims he received ineffective assistance of counsel because counsel's failure deprived him of a plea bargain. We conclude defendant has failed to show ineffective assistance of counsel.

The record reflects that when defendant was first sent out for trial in Department 13, the prosecution offered defendant a plea bargain of the "low term times two, which is four years in state prison." The trial court asked the prosecutor to state defendant's potential sentence exposure. The prosecutor stated defendant's potential exposure was 13 years.*fn3 Defense counsel confirmed that the four year offer had been the offer for most of this case and then told the trial court that: "I've discussed this particular offer and all offers with Mr. Menefee in great detail." Defendant was present in court when this discussion was held.

As the People point out, defense counsel's declaration appears inconsistent with his representation to the trial court that he had discussed all offers with defendant "in great detail," but in any event, any failure of counsel to advise defendant of the five-year enhancement was of no consequence because defendant knew from the statement of the prosecutor that he could receive a sentence of 13 years if convicted. The only way defendant could be exposed to a 13-year sentence was if there was an additional five-year enhancement applicable to him because of his prior strike. Yet he refused to accept any offered plea bargain. Defendant has not established he suffered prejudice from defense counsel's now asserted lack of advice and therefore, has not established ineffective assistance of counsel.

K. Defendant did not receive ineffective assistance of counsel from the cumulative effect of counsel's deficiencies.

While we have found a few matters in which defense counsel's performance fell below the objectively reasonable standard for attorneys, we conclude even considering the cumulative effect of the failures of defense counsel there is no reasonable probability that defendant would have obtained a more favorable result in the absence of the errors. The evidence against defendant was simply too strong.

III.

The Trial Court did not Abuse its Discretion in Denying Defendant's Motion for a Transcript of the Trial for Purposes of his Motion for New Trial

We return to defendant's claim that the trial court erred in denying his request for a full or partial transcript of the trial to assist counsel in bringing the motion for new trial. The basic answer is that defendant has suffered no prejudice from the denial of his request for transcript. We have a full transcript of defendant's trial. We have reviewed each of his claims of ineffective assistance of counsel and have found them meritless. (Cal. Const., art. VI, § 13.)

Moreover, even if we were to reach defendant's claim, we would find no error on this record.

In defendant's motion for a transcript of trial in order to further his motion for new trial, defendant claimed a transcript was necessary to assess and argue several enumerated issues of trial court error as well as claimed instances of ineffective assistance of counsel. The trial court denied defendant's request for a transcript based on defendant's failure to show a particularized need for the transcripts, citing People v. Bizieff (1991) 226 Cal.App.3d 1689, 1702 (Bizieff).

Defendant then filed a motion for reconsideration. Defendant emphasized that he was asserting issues of ineffective assistance of trial counsel as a basis for new trial and claimed that such grounds made a transcript necessary. The trial court again denied defendant's motion for a trial transcript addressing each of defendant's claims of ineffective assistance of counsel. The court found (1) defendant failed to state with any specificity the nature of his claim that his trial counsel failed to present a timely motion to continue when the record was replete with repeated continuances of the matter, (2) a transcript could not supply support for four of defendant's claims of ineffective assistance of counsel because they related to matters outside of the trial, and (3) the remaining two alleged mistakes by trial counsel would not rise to a level compelling relief.

On the same day that defendant filed for reconsideration of the denial of a transcript, he filed his motion for a new trial based in part on a claim of ineffective assistance of counsel. The motion for new trial was supported by a detailed declaration from trial defense counsel admitting he had made mistakes in representing defendant.

On appeal, defendant now claims the trial court erred in its ruling denying a transcript and its analysis of Bizieff, supra, 226 Cal.App.3d 1689. Defendant argues his substituted counsel needed a transcript in order to review errors in the admission of evidence and various failures by defense counsel in order to present them in his new trial motion.

Defendant accepts that "[a]n indigent defendant 'is not entitled, as a matter of absolute right, to a full reporter's transcript of his trial proceedings for his lawyer's use in connection with a motion for a new trial; but, since a motion for a new trial is an integral part of the trial itself, a full reporter's transcript must be furnished to all defendants . . . whenever necessary for effective representation by counsel at that important stage of the proceeding.' [Citation.] There are no mechanical tests for deciding when the denial of transcripts for a motion for new trial is so arbitrary as to violate due process or to constitute a denial of effective representation. Each case must be considered on its own peculiar facts and circumstances. [Citation.]" (Bizieff, supra, 226 Cal.App.3d at p. 1700, quoting People v. Lopez (1969) 1 Cal.App.3d 78, 83.) Defendant claims, however, he established his need for a trial transcript because he was represented by substituted counsel who intended to assert ineffective assistance of trial counsel as a ground for new trial. (Compare People v. Lopez, supra, at pp. 82-83 with People v. Westbrook (1976) 57 Cal.App.3d 260, 263.) We disagree with defendant's claim.

A defendant does not show a need for a trial transcript for purposes of a motion for new trial simply by a general incantation of "ineffective assistance of counsel." Even if defendant is represented by new counsel, defendant must show that the particular facts and circumstances surrounding his claims of ineffective assistance of counsel require a transcript. (Bizieff, supra, 226 Cal.App.3d at pp. 1702-1704.)

On appeal, defendant ignores the trial court's careful consideration of each of the claims of ineffective assistance of counsel asserted by defendant in his motion for a transcript and its conclusion that a transcript would either be unhelpful or unnecessary for their resolution. He does not argue any error in the court's specific assessment of the need for a transcript for the particular claims he raised. Not only does this forfeit the issue, but our review of the trial court's ruling persuades us the ruling was correct. Defendant's motion did not show how a trial transcript was necessary: to raise the claim that counsel failed to timely request a continuance; to explain his claim regarding defense counsel's failure to obtain evidence regarding the handwriting on the letter defendant claimed was written by Okimma; to establish whether defendant's trial counsel (1) failed to review tape recordings prior to trial, (2) failed to secure a tape and transcript of the parole hearing at which Okimma testified, and (3) failed to adequately advise defendant of his potential exposure to the five year enhancement. The trial court correctly determined that defendant was not entitled to relief for ineffective assistance of counsel based on defense counsel's incorrect comments about Okimma's medical records during closing argument and counsel's response to Okimma's mention of defendant's parole status. (See discussion, ante, part II D, E, & F.) Furthermore, it was clear from the motion for new trial submitted concurrently with defendant's request for the trial transcript that defendant's trial counsel was admitting the claimed errors and fully cooperating with substituted counsel in presenting defendant's claims of ineffective assistance of counsel to the court.

Defendant has not shown any abuse of discretion in the trial court's denial of his request for a trial transcript.

IV.

The Trial Court did not Abuse its Discretion in Denying Defendant's Motion for New Trial

Defendant claims the trial court abused its discretion in denying his new trial motion "based on the grounds presented, including the allegation of ineffective assistance of counsel." Defendant provides no further argument directed to this claim, but goes on to discuss the trial court's denial of his request for a transcript. Defendant then separately argues ineffective assistance of counsel. We have discussed these issues, ante.

As to defendant's brief assertion of error in the trial court's ruling regarding his motion for new trial, we need not address undeveloped points inadequately briefed. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) We simply note that given our conclusions regarding defendant's claims of ineffective assistance of counsel, defendant has not shown any abuse of discretion in the trial court's denial of his motion for a new trial. (People v. Thompson (2010) 49 Cal.4th 79, 140 [we review ruling on new trial motion under a deferential abuse of discretion standard].)

V.

Substantial Evidence Supports Defendant's Felony Convictions and the Trial Court Did not Abuse its Discretion in Refusing to Reduce Them to Misdemeanors

A. Substantial evidence supports defendant's conviction of corporal injury on a spouse in violation of section 273.5.

"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573]; see People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290 [same standard applies under the California Constitution].)

Defendant claims there is insufficient evidence of a traumatic condition resulting from the corporal injury to support his conviction of corporal injury on a spouse in violation of section 273.5. Defendant emphasizes the evidence that Okimma's injuries were mild. He contends more significant injuries would be expected if defendant had punched Okimma as hard as she claimed.

Unlike other statutes requiring the infliction of serious or great bodily injury, the "traumatic condition" that must be the result of a defendant's infliction of corporal injury on a spouse can be only minor, as long as there is an abnormal change in the victim's body (such as a wound, or some other external or internal injury). (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086 [bruise sufficient, pain alone is not]; People v. Abrego (1993) 21 Cal.App.4th 133, 137-138 [pain or tenderness not sufficient]; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [instruction properly defines traumatic condition to include minor injuries].)

There was evidence in this case that Okimma received a bruise under her eye, a cut lip, and a swollen area on her arm as a result of defendant's attack. This is sufficient evidence to support his conviction of violating section 273.5.

B. Substantial evidence supports defendant's conviction of criminal threats in violation of section 422.

A person is guilty of making a criminal threat if he or she: "willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her . . . immediate family's safety." (§ 422, italics added; see People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Defendant contends there is insufficient evidence to support his conviction of making a criminal threat in violation of section 422 because there was no specific evidence of a threat to kill or do great bodily harm. Defendant claims the evidence merely shows he said words like "I know where you live" and that Coleman took that as a threat.

The totality of the circumstances under which a threat is made gives meaning to the actual words used. (People v. Butler (2000) 85 Cal.App.4th 745, 753 (Butler); see People v. Smith (2009) 178 Cal.App.4th 475, 480.) One of the relevant circumstances to be considered is the parties' history. (Butler, supra, at p. 754; see People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) "Even an ambiguous statement may be a basis for a violation of section 422." (Butler, supra, at p. 753.)

Here, after the attack, Coleman testified that defendant said to her and Okimma: "If you call the police I know where you live." Coleman took his threat seriously and was afraid defendant would hurt her. Okimma testified that defendant told her: "If I go to jail, I know where you live." Defendant then pointed at Okimma and Coleman and said: "I know where your mom live[s] and I know where you live, too." Okimma was afraid for her life.

Considering defendant's words in context and under the totality of the circumstances, substantial evidence supports the conclusion that defendant's words conveyed a specific threat to kill or do great bodily harm. Defendant had physically abused Okimma in the past more times than she could remember. Such incidents included hitting her with a belt, choking her, and throwing hot water at her. Coleman was aware that defendant and Okimma had fights in the past and knew one of the reasons Okimma and defendant were separated was defendant's abuse. Coleman witnessed defendant's attack on Okimma just prior to his warning that he knew where she and Okimma lived. Defendant's attack was triggered by Okimma's refusal to return defendant's phone calls and texts. During the attack defendant hit Okimma in the face, on the back of her head, and on her arms. Okimma said defendant hit her about 15 times as hard as he could. It was fortuitous she did not suffer more severe injuries. Under these circumstances it was reasonable for Okimma and Coleman to be frightened defendant might do something even more serious if they called the police and he went to jail. Under the circumstances, defendant's words conveyed a threat of death or great bodily harm.

C. The trial court did not abuse its discretion in refusing to reduce defendant's felony convictions to misdemeanors.

If the evidence is sufficient to support his felony convictions, defendant contends the minor injuries and threats nevertheless justified a reduction of the charges to misdemeanors under section 17, subdivision (b) and that the trial court abused its discretion in denying his motion for such reduction.

A reduction of a felony to a misdemeanor is a part of the trial court's discretion in sentencing. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez); People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.) In ruling on a request for a reduction, the court must give individualized consideration to "the offense, the offender, and the public interest." (Alvarez, supra, at p. 978.) Sentencing factors and objectives provided by the California Rules of Court are relevant. (Ibid.)

The trial court denied defendant's motion to reduce his corporal injury on a spouse conviction under section 273.5 to a misdemeanor. It stated that "when considering, inter alia, the circumstances surrounding the conduct herein, the violation of a court order, the patent fixation continually focused by defendant on the victim herein, the time of occurrence, the manner in which the crime was perpetrated, along with defendant's prior criminal history that commences in his youth[*fn4 ], and that he was on parole at the time of this offense, does not compel the salutary relief [defendant] now seeks."

The trial court also denied defendant's motion to reduce his criminal threats conviction under section 422 to a misdemeanor. It stated: "Applying therefore, as before, inter alia, the circumstances surrounding defendant's conduct herein, the time, place and manner of occurrence, his prior criminal history, the ongoing propensity toward violence,[] and his parole status at the time of the offense, does not compel the salutary relief he now seeks."

The trial court clearly gave individualized consideration to "the offense, the offender, and the public interest" as required. (Alvarez, supra, 14 Cal.4th at p. 978.) The trial court's decision does not exceed "'the bounds of reason'" and so is not an abuse of discretion. (Ibid.)

VI.

The Trial Court did not Abuse its Discretion in Sentencing Defendant to the Upper Term for Corporal Injury on a Spouse

Rejecting the probation department's recommendation of the middle term, the trial court sentenced defendant to state prison for the upper term for his conviction of corporal injury on a spouse in violation of section 273.5. The court gave as reasons for its decision to impose the upper term that "defendant's prior convictions as an adult and his sustained petitions in juvenile delinquency proceedings have been numerous, that he was on parole when the crime was committed; [and] his prior performance on probation or parole was unsatisfactory."

Defendant claims the trial court abused its discretion in selecting the upper term given the insubstantial nature of the injuries and threats. We are unconvinced.

Selection of the appropriate term is a matter within the broad discretion of the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) The court is not required to follow the recommendations of the probation department (People v. Downey (2000) 82 Cal.App.4th 899, 910) and even a single aggravating factor is sufficient to support an upper term sentence. (People v. Steele (2000) 83 Cal.App.4th 212, 226.) We review a trial court's decision to impose an upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)

We find no abuse of discretion here. In focusing on the minor nature of Okimma's injuries and his own view of the nature of his threats, defendant inappropriately minimizes the seriousness of his conduct. Furthermore, the reasons stated by the trial court for imposing the upper term are fully supported by the record, and given those reasons, the court's choice of the upper term was reasonable.

VII.

Section 4019

Pursuant to this court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the claim that amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits.

However, because he has a prior serious felony conviction (§ 1192.7, subd. (c)(18)), defendant is not entitled to the additional presentence conduct credits afforded by section 4019, operative January 25, 2010. (See § 4019, former subds. (b)(2) & (c)(2), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50; § 2933, subd. (e)(3), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.)

DISPOSITION

The judgment is affirmed.

We concur:

NICHOLSO , Acting P.J. HULL ,J.


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