People v. Nye CA3

Filed 11/8/13 P. v. Nye CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C071415

Plaintiff and Respondent, (Super. Ct. No. P11CRF0534)

v.

KENNETH BRUCE NYE,

Defendant and Appellant.

Defendant Kenneth Bruce Nye repeatedly beat and verbally threatened his wife (the victim) during their marriage of approximately seven years. In this case, a jury found him guilty of making criminal threats and inflicting corporal injury on the victim having previously been convicted of corporal injury on her within seven years. The evidence supporting the current crimes was as follows: On October 21, 2011, defendant (who was living apart from the victim) came over to her house to return some bike tires, but the victim told him to leave. Instead of leaving, defendant went inside a garage on the property. The victim told him to get off the property. Defendant hit the victim on her head with something that felt like a metal pipe, causing her nose to bleed,

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and then told her, “ ‘I’m going to kill you, bitch.’ ” The victim called 911, and police found defendant hiding in his car. Defendant denied hitting the victim and said he was being sarcastic when he told her he was going to kill her. Approximately four years before these crimes, defendant pled to inflicting corporal injury on the victim. At trial, defendant’s sister testified that the victim had falsely accused the sister of “attacking [the victim], hitting her, [and] vandalizing her home.” Defendant’s sister acknowledged that charges were filed against her, but she claimed it was a “false police report.” On appeal, defendant raises two evidentiary issues and one sentencing issue. Finding merit in only the sentencing issue, we modify the judgment. DISCUSSION I There Was Sufficient Evidence Of Defendant’s Prior Corporal Injury Conviction Defendant contends there was insufficient evidence to support the jury’s finding that he had a prior conviction for inflicting corporal injury on a spouse within seven years of the current crimes. The proof of the prior conviction consisted of the following: toward the very end of the People’s case-in-chief and in front of the jury, the prosecutor asked the court to take judicial notice of the following: “[A] plea that [defendant] entered to a violation of Penal Code Section 273.5, corporal injury to a spouse, being [the victim]. He entered that plea on April 23rd of 2007.” Defense counsel did not object, and the court stated it would take the requested judicial notice. The People then rested and the court told the jury, “So, ladies and gentlemen, you basically heard all of the testimony you’re going to hear from the People in this case, at least up to this point. If there’s rebuttal testimony, that’s something else. [¶] Now we’ll start with the Defense case.” In opening statement and in closing argument, defense counsel admitted to the jury that defendant had pled to that prior conviction.