People v. Terra CA3

Filed 6/30/15 P. v. Terra CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C077836

Plaintiff and Respondent, (Super. Ct. No. 01F03658)

v.

GREGORY FRANCIS TERRA,

Defendant and Appellant.

Defendant Gregory Francis Terra appeals from the trial court’s order denying his Penal Code section 1170.1261 petition for resentencing because he committed his instant offense, corporal injury to a spouse (§ 273.5, subd. (a)), with an intent to cause great bodily injury. He contends that he was entitled to a jury trial and proof beyond a reasonable doubt on whether he intended to cause great bodily injury, and the trial court’s finding is not supported by substantial evidence. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND We take the facts of defendant’s current offense from the order denying the petition for resentencing, which quotes our opinion affirming his conviction (Feb. 5 2013, C040088.) “ ‘On May 1, 2001, defendant’s wife, Gayle Spano-Terra was home with defendant. . . . Spano-Terra is an alcoholic and drinks a bottle of wine every day. On this occasion, she had drunk a few glasses of wine. “ ‘At approximately 2:00 a.m., Spano-Terra called defendant’s brother, Gary Terra, and told him defendant had hit her and was trying to choke her. Spano-Terra was yelling and screaming but did not sound like she was drunk. Gary Terra heard defendant say, “Give me the phone” and then the line went dead. Gary Terra called 9-1-1. “ ‘Several Sacramento County deputy sheriffs, including Anthony Saika, responded to the call and arrived at the residence around 2:30 a.m. Saika heard a male voice inside the residence yelling in an aggressive manner. Saika knocked on the door several times but no one responded. The officers gained entry by cutting the screen and unlocking the door. “ ‘The officers announced their presence and Spano-Terra emerged from the back bedroom saying, “ ‘I fell, I fell, I fell.’ ” Her right eye was swollen and bruised and there was blood on the front of her shirt. She appeared to be scared and to have been drinking, although she was not stumbling. Defendant followed her out of the bedroom. “ ‘Upon questioning, Spano-Terra stated she had fallen on her face two days earlier. She said she had locked herself out of the residence and fallen while attempting to crawl through a window. However, her eye was progressively closing shut and Saika believed the injury to be recent. She was adamant that defendant had not injured her and pleaded with Saika to take her to jail. The officers continued to question her. “ ‘Spano-Terra stated she was having an allergic reaction that was causing her nose to bleed and that she bruised slowly. When one of the officers suggested that