People v. Herrera CA3

Filed 4/21/15 P. v. Herrera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C074425

Plaintiff and Respondent, (Super. Ct. No. 12F08504)

v.

JOSE ALFREDO HERRERA,

Defendant and Appellant.

A jury found defendant Jose Alfredo Herrera guilty of threatening to commit a crime that would result in death or great bodily injury (Pen. Code, § 422; count one; unless otherwise stated, statutory section references that follow are to the Penal Code), assault with a firearm (§ 245, subd. (a)(2); count two), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count three), misdemeanor battery on the parent of his child (§ 243, subd. (e)(1); count four), and found that he personally used a firearm (§ 12022.5, subd. (a)(1)) in the commission of counts one and two. The jury found

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defendant not guilty of misdemeanor child abuse. (§ 273a, subd. (b).) Defendant was sentenced to prison for an aggregate 14 years eight months. On appeal, defendant contends (1) the trial court violated his Fourteenth Amendment rights when it admitted evidence of prior acts of abuse to prove his propensity to commit the present offenses, and (2) he is entitled to one additional day of presentence credit; the People concede this latter point. We modify the judgment.

FACTS

Prosecution Case-in-Chief

Defendant met Ruby P. in 1994 when she was a freshman in high school. They are the parents of a son, Angel, born in 1996; and a daughter, Precious, born in 1999. From 1994 to 2003, defendant abused Ruby by making accusations of infidelity, exhibiting “controlling” behavior, striking her, pushing her into walls, and punching her with his hands. One night in July 2003 defendant came home drunk, demanded money from Ruby, and assaulted her when she refused. Defendant repeatedly struck Ruby’s face using his fist, stabbed her arm using scissors and a pocketknife, and struck her head using a chain. The head injuries required stitches. Defendant later pleaded no contest to causing corporal injury to a cohabitant. Defendant and Ruby separated for six years. After they reunited, defendant lived with Ruby and the children in Sacramento. But defendant was jealous and regularly accused Ruby of cheating on him. Defendant suffered from diabetes. In 2010, a portion of one leg became infected and was amputated. Thereafter, defendant walked with a prosthetic leg. He is blind in one eye and partially blind in the other. On December 26, 2012, defendant and a friend consumed alcohol at the family home. At defendant’s request, Ruby drove the friend to his residence. After the friend