The People v. Koellish CA2/6

Filed 9/17/13 P. v. Koellish CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246736 (Super. Ct. No. F468352) Plaintiff and Respondent, (San Luis Obispo County)

v.

CHRISTOPHER LEE KOELLISH,

Defendant and Appellant.

An amended complaint charged appellant Christopher Lee Koellish with felony vandalism (count 1 – Pen. Code, § 594, subd. (b)(1)),1 inflicting corporal injury on a cohabitant (counts 2 & 3 – § 273.5, subd. (a)), forcible rape (count 4 – § 261, subd. (a)(2)), and making criminal threats (count 5 – § 422). Counts 2 and 3 also accused appellant of inflicting great bodily injury on the victim (§ 12022.7, subd. (e)). The complaint further alleged that appellant had served two prior prison terms (§ 667.5, subd. (b)). Appellant entered into a negotiated plea agreement in which he pled no contest to count 5 (making criminal threats) and stipulated to a two-year prison term in exchange for dismissal of the remaining counts and allegations. The trial court sentenced

1 All statutory references are to the Penal Code.

appellant to state prison for two years and ordered him to pay victim restitution in the amount of $1,821.40. He received 456 days of presentence custody credit. Appellant contends the trial court erred by ordering victim restitution since he had not entered a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754 (Harvey).) The waiver was not necessary, however, because the facts of the dismissed vandalism count were transactionally related to the admitted count. We affirm. FACTS AND PROCEDURAL BACKGROUND2 Appellant and Danielle Conn were involved in a dating relationship and were living in her residence. After a series of relationship issues, including incidents of domestic violence, Conn told appellant to move out. Because he kept returning without her permission, Conn changed the locks on the doors. At that time, appellant was subject to a restraining order allowing only "peaceful contact" with Conn. Early in the morning on December 11, 2011, Conn was asleep in her bedroom when she heard glass breaking. Moments later, appellant kicked in her locked bedroom door and started yelling that they need to talk about their relationship. He told Conn she would never be safe and threatened to kill her. Conn was scared and did not respond to his threats. Appellant then left the room and she heard the sound of more breaking glass. Eventually, he left the house, and she discovered that he had broken four window panes in the door plus three kitchen windows. Appellant returned later that afternoon and resumed the confrontation. Conn barricaded herself in her bedroom and sent a text message to her sister asking her to call the police. When San Luis Obispo police officers responded, they saw that two exterior doors were open and that a door and three large windows had been damaged. Conn said she did not call the police directly because she was afraid appellant would overhear the conversation and become more aggressive. She said that appellant's