People v. Smith CA3

Filed 8/28/14 P. v. Smith CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C073825

Plaintiff and Respondent, (Super. Ct. No. 12F00872)

v.

KEVIN ODELL SMITH,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant Kevin Odell Smith was charged with three felonies: corporal injury to a spouse or cohabitant (count one; Pen. Code, § 273.5, subd. (a)),1 making criminal threats (count two; § 422), and false imprisonment (count three; § 236). The information also alleged a prior strike.2

1 Undesignated statutory references are to the Penal Code. 2 Defendant moved unsuccessfully before trial to dismiss the prior strike allegation.

1

At trial, Sacramento Police Officer Karl Chan testified that at approximately 2:00 a.m. on January 18, 2012, he responded to a dispatch of an alleged assault on a female by her boyfriend. Officer Chan drove to the intersection of La Mancha Way and Mack Road, where the alleged victim was waiting for help. The officer found L.W., who seemed scared, nervous, and, at times, hysterical, and took her statement as she sat in his patrol car. L.W. told the officer that earlier in the evening she was at home a few blocks away, where she lived with defendant and his invalid mother and served as her in-home caretaker. Defendant found a cup of alcohol L.W. had attempted to hide, which angered him because she was supposed to stop drinking. He started to beat her, grabbing her by the throat, and slamming her against a wall several times. He pulled clothes out of the closet and threw them all over the room. He dragged L.W. to the bathroom, where he tried to fill the bathtub with water, using a Listerine cap to block the drain cover. He put her head down into the water, apparently trying to drown her while saying, “Bitch, I’ll kill you,” but the water kept draining out of the tub. She was able to push off from the bathtub and escape, then run out of the house, after which she called 911. Officer Chan observed that L.W.’s sleeves were wet. According to L.W., defendant had never been violent with her before. When L.W. complained of feeling light-headed, Officer Chan inspected her for injuries and saw a small bruise on the right side of her neck. She did not mention any other injuries, and he did not see any. As Officer Chan drove toward defendant’s house with L.W. in the backseat, the officer saw a bald African-American male wearing a black jacket with Nascar patches walking down the street in the opposite direction. L.W. screamed and ducked down in her seat, saying that was her boyfriend. The officer turned left onto a street near the house, told L.W. to run home, and tried to contact the male. Seeing the male walking on