People v. Turcios CA2/8

Filed 6/1/15 P. v. Turcios CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B256452

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA414299) v.

JORGE TURCIOS,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Affirmed.

Law Offices of Andy Miri and Andy Miri for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Jorge Turcios was convicted by jury of one count of inflicting corporal injury on a cohabitant, and sentenced to a four-year prison term. He contends the trial court erred by (1) erroneously admitting a 911 call related to a prior uncharged incident of domestic violence; (2) instructing with a prejudicially misleading burden of proof instruction regarding prior acts of domestic violence; (3) failing to instruct sua sponte with “Alternative B” of CALCRIM No. 121; and (4) imposing the high term based on facts related to the elements of the substantive charge. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In July 2013, Maria C. was defendant’s girlfriend. They lived together and she was five months pregnant with their child. On July 31, defendant and Maria got into a fight. Defendant accused Maria of having an affair and that she was carrying someone else’s child. Defendant grabbed Maria and slammed her head into the bathroom door. Maria got her cell phone to call the police and defendant snatched the phone away from her. He grabbed her hair and threw her to the ground. Defendant then put his hand around her throat as if to choke her, kicked her in the stomach, and told her “I’m going to take out that kid.” Defendant left Maria in the apartment and went outside to sit on the stairs. Maria did not have her own car, and she was without her cell phone because defendant had taken it from her. She went outside and told defendant she needed a cab to go to her mother’s house. Defendant drove Maria to her mother’s house. Maria had a headache and her lower back hurt. She told her mother, Brenda M., what happened. Brenda called 911. Los Angeles Police Department Officer Angel Alfaro reported to Brenda’s home in response to the 911 call. Officer Alfaro, who is fluent in Spanish, spoke with Maria about the incident. Defendant was charged with one count of inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) Defendant pled not guilty.