P. v. Ocegueda CA5

Filed 7/30/13 P. v. Ocegueda CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE,

Plaintiff and Respondent, F064351

v. (Super. Ct. No. F11905706)

INDALECIO OCEGUEDA, JR., OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Gomes, Acting P.J., Kane, J., and Detjen, J.

A jury convicted appellant, Indalecio Ocegueda, Jr., of the offense commonly known as spousal abuse (Pen. Code, § 273.5, subd. (a)),1 and in a separate proceeding, appellant admitted allegations that he had suffered a “strike”2 and that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of nine years, consisting of the four-year upper term on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subds. (d) & (e)(1); 1170.12, subds. (b) & (c)(1)), plus one year on the prior prison term enhancement. Appellant argues that there was evidence he committed two separate acts, each of which could constitute a violation of section 273.5, and therefore the trial court erred in failing to instruct, sua sponte, that jurors were required to unanimously agree on which act constituted the violation of section 273.5. We affirm. FACTS City of Fresno Police Officer Billy Richards testified to the following: On October 1, 2011 (October 1), at 5:06 p.m., while investigating a report of a domestic disturbance, he made contact with Vanessa Ocegueda (Vanessa).3 Vanessa, who “had swelling on the right side of her skull,” told Richards the following: Appellant is her husband and the two have a child together. At approximately 1:30 p.m. to 1:45 p.m. on October 1, appellant “came over to the apartment and asked her to do his laundry,” the