(Super. Ct. No. CM030757)
The opinion of the court was delivered by: Nicholson , Acting 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Kenneth Jerome Ray of infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 1). The jury acquitted him of a second count of the same offense occurring on another date as well as all lesser offenses. In bifurcated proceedings, the court found two strike priors and two prior prison term allegations to be true.
Sentenced to state prison for 26 years to life, defendant appeals. He contends (1) the trial court's instruction on prior uncharged domestic violence violated his right to due process, (2) the trial court erred in admitting certain evidence in rebuttal and should have declared a mistrial, and, to the extent the issue is forfeited, counsel rendered ineffective assistance, and (3) the trial court erred in admitting evidence of text messages sent by defendant to the victim. We affirm the judgment.
The victim met defendant on May 19, 2006, and within a month, defendant was living with the victim and her son. On April 2, 2007, the victim and defendant argued. Defendant wanted the victim to drive him to his brother's house. After she pulled the car out of the driveway, defendant took the keys out of her hand and threw her mailbox at the windshield of her car, causing no damage. He then took the keys and her mailbox with the mail in it and ran down the street. She cried for help, but did not call the police because defendant had threatened her and her family. Karen Duval heard the victim and called 911. Upon arrival, the police saw defendant walking away from the residence. The victim was upset and told the police that she wanted defendant to leave but she did not tell the police what had happened. The victim did tell her friend, Jill Burns.
On February 13, 2008, during an argument, defendant pushed the victim and she fell on the driveway, breaking her wrist. Defendant yelled, "Get up, fat bitch." She cried in pain. They continued the argument in the house. Defendant pushed her again and she hurt her back. She did not call the police, fearing defendant.
On February 14, 2008, the victim told a doctor in defendant's presence that she broke her wrist when she slipped and fell on tile around the swimming pool. She wore a hard cast and then a wrist brace and was unable to work for approximately three months. The victim did not tell Burns because she would tell the victim's family who would in turn report it to the police. The victim's mother was married to a former sheriff's department employee.
On May 5, 2008, defendant sent the victim a text message, apologizing for breaking into her house. On May 8, 2008, defendant sent the victim several text messages, one ended with "spreadin' [sic] it." The victim interpreted the message to mean that defendant had put drugs around the victim's house as he previously had done so someone like her former spouse would find them which would have been detrimental to her rights to visitation with her son. Another text message said, "Did you think that you would go unnoticed?" The victim did not know what the text was about. Another referred to her drug use. In one text, defendant referred to the victim's former spouse and said, "[I]t's about to get real ugly." The victim understood that message to be a threat. Defendant texted that he would have T-shirts made concerning the victim's drug use and have people wear them while standing around her mother's car or in the parking lot at the school of the victim's son. Defendant sent another text that his harassment was not going to stop until May 19th, their anniversary. On cross-examination, the victim explained she saved defendant's May 2008 text messages which she considered threatening in case "anything ever happened." She admitted they had exchanged more text messages between May 2006 and March 2009.
On May 19, 2008, defendant and the victim went to a casino to celebrate their anniversary. They drank alcohol and used marijuana and cocaine. After having sex, they argued and defendant started to leave. The victim yelled at him to stay and he punched her in the nose, stomach and mouth, breaking one of her teeth. She did not call the police or security or show her injuries to anyone at the casino. She saw a dentist two days later. She lied to the dentist and to Burns and Tina Apodaca, another friend, about how the tooth was damaged to protect defendant. She later told the dentist the truth about the tooth. (Count 2, acquitted.)
At 7:00 a.m. on March 9, 2009, defendant called the victim at her house and told her that his grandmother died. She was upset that defendant had stayed out all night and told him that their relationship was over. Defendant replied, "'This is not about you.'" Later the same day, the victim went to the home of defendant's sister and told defendant that the relationship was over. They began to argue and defendant threatened to "smash" her face. She agreed to take him to her house so he could get some clothes after he promised not to hit her.
In the car, they started arguing. When defendant saw that she was not going toward her house, he said, "You stupid bitch. What are you doing?" When she stopped the car at a liquor store to get something to drink, she received a call from Apodaca. After the call, the victim returned to the car and headed to her house. When defendant started yelling at her, she was too scared to go to her house. At an intersection, defendant jumped out of the car and ran toward the victim's house. She drove to the house, beating defendant there, and called Apodaca, asking her to come to the house. The victim was concerned that defendant would take something of hers. When defendant arrived, he beat on the door. She felt sympathetic toward defendant because of his grandmother's death. He promised that he would not hit her and she let him in.
As he rushed into the house, he knocked boxes over and grabbed items. They started to argue. He grabbed her by her wrist and punched her three or four times in the face. He then hit her in the stomach. When she fell to the ground, he kicked her in the head, side, and buttocks. He stopped when his friend, Jeffery Robinson, drove up. Defendant left, taking the mailbox and the ...