Opinion
D070632
02-03-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON ZABALA, JR., Defendant and Appellant.
Law Offices of John E. Edwards and John E. Edwards, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. SCE358189) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed. Law Offices of John E. Edwards and John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Ramon Zabala, Jr., of corporal injury to a romantic partner. (Pen. Code, § 273.5, subd. (a).) In bifurcated proceedings, Zabala admitted a prior conviction for the same offense under section 273.5, subdivision (f)(1) and a prison prior under section 667.5, subdivision (b). The trial court sentenced Zabala to the middle term of four years in prison and struck his prison prior for purposes of sentencing. The court imposed a $1,500 restitution fine under section 1202.4, subdivision (b); an additional $1,500 parole revocation restitution fine under section 1202.45, which it suspended; and various other fees. The court made an express finding that Zabala had the ability to pay the fines and fees. It awarded Zabala 66 days actual custody credits and 66 days additional custody credits under section 4019, for a total of 132 days presentence custody credits.
Further statutory references are to the Penal Code unless otherwise specified.
Zabala appeals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) and has not raised any specific issues on appeal. Zabala's counsel asks this court to review the record independently for error as required by Wende. We granted Zabala the opportunity to file a supplemental brief on his own behalf. He has not responded. We have independently reviewed the record under Wende and found no reasonably arguable issues for reversal on appeal. We therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
In February 2016, Zabala was in a romantic relationship with Erica E. She was four-and-a-half months pregnant and believed Zabala to be the child's father. One morning, after Erica had stayed overnight with Zabala at his mother's house, Erica asked Zabala to give her a ride to class. Zabala refused, telling Erica that his car did not have registration tags. Zabala and Erica began to argue, and Zabala punched Erica in the face.
Rule 8.90(b) of the California Rules of Court, which became effective on January 1, 2017, requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only" to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Id., (b)(4).) After consideration, we will refer to the victim in this case, as well as a witness who was a victim in a prior case, by their first names and last initials, and thereafter by their first names only, to provide them with some measure of anonymity. Our use of their first names is in no way intended as a sign of disrespect. --------
Erica called 911. She told the operator that Zabala hit her in the face and her eye was "huge right now." Deputies with the San Diego County Sheriff's Department arrived, and Erica told them Zabala had hit her in the face. Because Erica was pregnant, the deputies called an ambulance. The ambulance arrived, and paramedics questioned Erica about her injuries. Erica told them that Zabala had hit her in the face. The ambulance took Erica to a hospital.
Meanwhile, Zabala hid in a garage on his mother's property. Although the sheriff's deputies used a loudspeaker to demand that Zabala surrender, he did not respond. A short time later, Zabala's mother arrived and coaxed him out of hiding. The deputies placed Zabala under arrest.
Later that day, a deputy sheriff contacted Erica. She told the deputy again that Zabala had hit her in the face. But, when asked whether she would cooperate with his prosecution, Erica appeared hesitant. She wanted Zabala to be there for the birth of their child. She asked how to drop the charges against Zabala.
At Zabala's trial, Erica recanted her prior statements and denied that Zabala hit her. She said she and Zabala had an argument about driving to her class. When Zabala began to drive away to calm down, Erica claimed she dove head-first through the open window of Zabala's car and hit her face on the gear selector. (Erica denied hitting her stomach on the window as she dove through.) Erica said she told the 911 operator that Zabala hit her because she was upset and thought he must have hit her. But, on reflection, she believed she had injured herself. Erica denied telling sheriff's deputies or medical personnel that Zabala hit her. By the time of trial, Erica and Zabala were no longer in a relationship, but she wanted him to be part of their child's life.
Sheriff's deputies and a paramedic testified at trial. Each witness repeated Erica's statements on the day of the argument that Zabala had hit her. A tape of Erica's conversation with the 911 operator was played for the jury as well. The prosecution introduced photos showing bruising on Erica's face. Erica denied having bruises anywhere else.
The prosecution also offered testimony from Janice R., who previously was in a romantic relationship with Zabala. Janice testified that one day during their relationship Zabala became angry because she had offered him leftovers for breakfast. Zabala punched Janice repeatedly in the face until a neighbor interrupted him and she escaped.
The defense called Erica's former roommate, Lorrie Holley, and Zabala's mother. Holley testified that Erica was not generally a truthful person. She said Erica told her on the night of the argument that Zabala had not hit her; she had accidently injured herself. Zabala's mother testified regarding text messages in which Erica appeared to acknowledge that she injured herself by diving into the car.
DISCUSSION
As we have noted, Zabala's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and has not raised any specific issues on appeal. Instead, Zabala's counsel identified five possible issues under Anders: (1) "Whether the court erred in allowing testimony of [Janice R.] as to a prior incident of domestic violence. (Evid. Code[,] § 1109, subd. (a)[(1)]; CALCRIM [No.] 852 [use notes]; People v. Johnson (2000) 77 Cal.App.4th 410.)" (2) "Whether the prior incident of domestic violence should have been admitted by conviction, rather than through testimony to minimize the impact of the facts of that incident, and whether defense counsel waived any error by failing to object to testimony about the facts of that case and photographs of injuries to victim and by failing to request that the conviction be entered instead or that the facts be further sanitized. (Evid. Code[,] § 1109; Evid. Code[,] § 352; see People v. Horning (2004) 34 Cal.4th 871, 905.)" (3) "Whether the court had sufficient evidence before it to support a finding on ability to pay restitution fines imposed under sections 1202.4, subdivision (b) and 1202.45 and whether any lack of supporting evidence was waived by Mr. Zabala's failure to object at the time of sentencing. ([] § 1202.4, subd. (b); People v. Crittle (2007) 154 Cal.App.4th 368[]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-69.)" (4) "Whether the court correctly calculated pre-sentence credits." (5) "Whether the court erred in not providing instruction on lesser included offenses of misdemeanor battery ([] §§ 242, 243[, subd.] (a); see People v. Gutierrez (1985) 171 Cal.App.3d 944, 952); battery against a cohabitant ([] § 243[, subd.] (e)(1)); or simple assault. ([] §§ 240, 241[, subd.] (a); People v. Van Os (1950) 96 Cal.App.2d 204, 206) and whether any error was waived by the decision of both counsel not to request instruction on any lesser included offenses. (CALCRIM [No.] 840; People v. Horning (2004) 34 Cal.4th 871, 905; People v. Cooper (1991) 53 Cal.3d 771, 831.)"
We have independently reviewed the record under Wende and considered the possible issues identified by Zabala's counsel. We have found no reasonably arguable issues for reversal. Competent counsel has represented Zabala in this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.