People v. Biddle CA2/3

Filed 7/10/14 P. v. Biddle CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B248583

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA401496) v.

TARVELL LAVAN BIDDLE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Craig Richman, Judge. Affirmed in part, modified in part, vacated in part, and remanded with directions. James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Tarvell Lavan Biddle appeals from the judgment entered following his conviction by jury on count 1 – corporal injury upon a cohabitant or child’s parent (Pen. Code, § 273.5, subd. (a)) with personal infliction of great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). The court sentenced appellant to prison for an unstayed term of four years. We affirm the judgment, except we modify it in part, vacate appellant’s sentence, and remand with directions. FACTUAL SUMMARY Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on May 25, 2012, in Los Angeles County, appellant, the father of children of Laquinisha W.,1 battered her numerous times, breaking her jaw and knocking out teeth. At trial, the People introduced, pursuant to Evidence Code section 1109, evidence of qualifying prior acts of domestic violence by appellant. In particular, on October 21, 2004 and February 26, 2005, when appellant was dating Coretta Wilson, the mother of another child of appellant, appellant battered Wilson. On February 25, 2010, appellant, then Laquinisha W.’s boyfriend, battered her. Appellant also battered her during the week of September 2011. ISSUES Appellant claims (1) the trial court violated his right to due process by giving CALCRIM No. 852 to the jury, and (2) the trial court erred by staying, instead of striking, punishment on the Penal Code section 12022.7, subdivision (e) enhancement. Respondent claims in a footnote the trial court erroneously imposed a $400 Penal Code section 1203.097, subdivision (a)(5) probationary payment.