(Super. Ct. No. 09F04644)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Troy Jorgensen was convicted of a lewd and lascivious act upon a child who is 14 or 15 years old by a person who is at least 10 years older (Pen. Code, § 288, subd. (c)(1)), five counts of sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c)), four counts of oral copulation of a minor (Pen. Code, § 288a, subd. (b)(1)), two counts of sexual penetration of a minor (Pen. Code, § 289, subd. (h)), and single counts of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)), and misdemeanor battery on a dating partner (Pen. Code, § 243, subd. (e)(1)).*fn1 The trial court sustained six strike allegations and sentenced defendant to 325 years to life in state prison.
On appeal, defendant contends (1) there was insufficient evidence to support three of the six strike allegations, (2) two of the three remaining strikes should have been stricken in the interests of justice, (3) admitting prior uncharged acts of domestic violence as propensity evidence violated due process; and (4) there was instructional error on the propensity evidence. We shall affirm.
S.B. was born on January 2, 1993. She met defendant through her friend Lydia's mother in May 2008. Defendant, who was born on July 14, 1967, lived in a trailer on the property of Lydia's family.
Defendant and S.B. began smoking marijuana together. He provided the marijuana, which they smoked "Every day to every other day." She became sexually active with defendant in December 2008. They had intercourse about 15 times before S.B. turned 16. S.B. and defendant also engaged in oral sex and digital penetration of S.B. when she was 15. The relationship was consensual; defendant told S.B. he loved her and gave her an engagement ring. S.B. considered defendant to be her boyfriend about a week after she turned 16. S.B. ran away from home in February 2009 and lived with defendant for about a week.
Defendant knew S.B.'s age and was concerned he would get caught. He would tell S.B. to deny everything if anyone asked her about the relationship. Defendant once threatened to kill S.B. and cut her up if she told anyone about them.
Defendant "smacked" S.B. across the face during an argument in May 2009. S.B. did not report the incident to the police because she still loved defendant and did not want him to go to jail.
S.B. ran away from home a second time in late May 2009 and lived in defendant's trailer for about two weeks. On June 6, 2009, defendant struck her in the face and punched her in the chest during an argument. S.B. got a knife, and defendant told her to stab him. When S.B. put the knife down and walked away, defendant pushed her down. S.B. twisted her ankle as she kicked defendant and freed herself. S.B. jumped on the bed and pulled down a curtain rod; defendant grabbed the rod and used it to strike S.B. all over her body.
S.B. did not report the incident until she returned home. She later made a pretext call to defendant in which he apologized for hitting her. Defendant told S.B. he was afraid of going to prison for "statutory rape" if S.B. got pregnant by him. When S.B. asked why he would go to prison, defendant told her she was 16 and that was statutory rape.
In August 2002 defendant moved to Sacramento with his girlfriend, Sharon Warden-Papandrea. During an argument in February 2004, defendant punched her in the right side of the face with his fist. Warden-Papandrea escaped to the bedroom but defendant caught her. He then grabbed Warden-Papandrea, punched her, and kicked her.
The relationship ended in August 2004. In September 2004 defendant made threatening phone calls to Warden-Papandrea, telling her, "I'm going to take your daughter away from you. I'm going to burn the house down. I'm going to kill your kids. I'm going to burn all of you in the house."
Roberta Korf dated defendant and lived with him in 2005. On May 22, 2005, they got into an argument while Korf drove home. Defendant said it was a good day to die, grabbed the steering wheel, and jerked it. Korf lost control of the car, which spun and struck a utility pole.
The trial court sustained six strike allegations against defendant--three 1988 convictions for first degree burglary (§ 459), a 1987 conviction for theft of a firearm (former § 487, subd. (3)), and convictions for assault with a deadly weapon (§ 245, subd. (a)(1)) in 1993 and 1994. Defendant asserts there is insufficient evidence to support the trial ...