People v. Uscola CA3

Filed 5/21/15 P. v. Uscola CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C076149

Plaintiff and Respondent, (Super. Ct. No. 13F03843)

v.

KYACEY USCOLA,

Defendant and Appellant.

Defendant Kyacey Uscola contests his sentencing pursuant to Penal Code section 273.5, subdivision (f)(1), 1 which establishes a more severe sentence for domestic violence offenders with a prior conviction for certain crimes. He claims his prior

1 Further undesignated statutory references are to the Penal Code. At the time of defendant’s sentencing, the applicable provision was section 273.5, subdivision (e)(1), which is now codified without change at subdivision (f)(1). (Stats. 2013, ch. 763, § 1.)

1

misdemeanor conviction under section 273.5, subdivision (a) is not a qualifying offense under that section. We disagree and affirm the judgment. BACKGROUND The facts underlying defendant’s offenses (both prior and current) are not at issue in this appeal. It suffices to say that defendant was found guilty by jury of spousal battery (§ 243, subd. (e)(1)); corporal injury on a spouse resulting in a traumatic condition (§ 273.5, subd. (a))2; battery resulting in serious bodily injury (§ 243, subd. (d)); and violating a protective order (§ 166, subd. (c)(1)). As to the felony battery and corporal injury charges, the jury also found true the allegation that defendant had personally inflicted great bodily injury (§ 12022.7, subd. (e)); as to the corporal injury charge, the jury found true that defendant had a prior domestic violence conviction (§ 273.5, subd. (f)(1)). As relevant here, the trial court sentenced defendant to the upper term of five years in state prison for the corporal injury on a spouse (§ 273.5, subds. (a) & (f)(1)), with an additional five years for the great bodily injury enhancement, totaling 10 years in prison. Defendant appeals. DISCUSSION It is undisputed that defendant had sustained a prior misdemeanor conviction pursuant to section 273.5, subdivision (a). Defendant contends that this conviction was not a qualifying prior conviction under section 273.5, subdivision (f)(1), because it was not a felony.