People v. Banda CA2/3

Filed 4/21/15 P. v. Banda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B253830

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA398996) v.

EDDIE JESUS BANDA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Jr., Judge. Modified and, as modified, affirmed with directions.

Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Chung L. Mar and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Eddie Jesus Banda appeals from the judgment entered following his convictions by jury on count 2 – corporal injury to a cohabitant, with personal use of a deadly and dangerous weapon, and personal infliction of great bodily injury under circumstances involving domestic violence, and on count 3 – dissuading a witness, with a court finding as to count 2 he suffered a prior conviction for violating Penal Code section 273.5, subdivision (a), and court findings he suffered a prior felony conviction, a prior serious felony conviction, and three prior felony convictions for which he served separate prison terms.1 (Pen. Code, §§ 273.5, subds. (a) & (e)(1), 136.1, subd. (a)(1), 667, subds. (a) & (d), 667.5, subd. (b), 12022, subd. (b)(1), & 12022.7, subd. (e).) The court sentenced appellant to prison for 18 years 4 months. We modify the judgment and, as modified, affirm it with directions. FACTUAL SUMMARY 1. People’s Evidence. Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on May 16, 2012, Monica Zuniga (the victim), appellant, and appellant’s nephew Ramiro Wayne B. (Wayne) resided in the 300 block of North Gifford in Los Angeles County. Zuniga and appellant were cohabiting and appellant was the father of Zuniga’s baby. Zuniga testified at trial as follows. The night before May 16, 2012, Zuniga and appellant were arguing. On May 16, 2012, Zuniga and appellant were in their bedroom. Appellant swung a wooden bat at Zuniga. She raised her right arm to prevent the bat from hitting her face. Appellant struck her right forearm with the bat, causing a bruise.