The People v. Frasure CA3

Filed 9/27/13 P. v. Frasure CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte)

THE PEOPLE, C072029

Plaintiff and Respondent, (Super. Ct. No. CM035348)

v.

ADRIAN DASHUN FRASURE,

Defendant and Appellant.

After defendant Adrian Dashun Frasure pled guilty to inflicting corporal injury upon a spouse or cohabitant (Pen. Code,1 § 273.5, subd. (a)), the trial court awarded $5,000 in victim restitution (§ 1202.4, subd. (f)). Defendant did not object. Defendant contends the victim restitution award was an abuse of discretion and unauthorized by statute because it was based in part on noncompensable “emotional damages.” We conclude defendant‟s contention is forfeited. We shall affirm.

1 Undesignated section references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged by information with felony corporal injury to a spouse or cohabitant (count 1; § 273.5, subd. (a)), misdemeanor false imprisonment (count 2; § 236), and misdemeanor interference with a wireless communication device (count 3; § 591.5). As to count 1, it was alleged that defendant had four prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and five prior prison terms (§ 667.5, subd. (b)). Defendant pled guilty to count 1 and admitted one prior strike and five prior prison terms, in exchange for a stipulated sentence of nine years in state prison. The preliminary hearing provided the factual basis for defendant‟s plea. The evidence at the preliminary hearing showed that the victim, Andrea J., told law enforcement on the evening of October 11, 2001, that defendant, her husband, had returned to their residence after his release from prison, but she did not want him there. They argued verbally. During the argument the telephone rang. She went into the bathroom to take the call, which was from one of her male friends. Defendant became upset and asked who was calling. He forced his way into the bathroom and tried to take the phone from Andrea J. After he got the phone away from her, she tried to leave the apartment, but defendant blocked her exit. He threw her down on the floor and tried to strangle her. She punched him with her keys, then got hold of the house phone and called a friend, asking her to call the police. Defendant grabbed the phone from her and broke it, then took a knife and cut off his ankle monitor. The officer who responded to her apartment observed redness on her neck consistent with strangulation, a cut on her lip, and a cut above her eye. The trial court sentenced defendant to the agreed nine-year state prison term, consisting of four years on count 1 (the low term, doubled for the strike) and five years for the five prior prison terms. The court also ordered defendant to pay Andrea J. $5,000 in victim restitution.