People v. Rodriguez CA1/1

Filed 1/19/16 P. v. Rodriguez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A143416 v. ORLANDO RODRIGUEZ, (San Mateo County Super. Ct. No. SC075263A, Defendant and Appellant. SC076373A)

Appellant was convicted of assaulting his girlfriend on one occasion, and a year later, violating a stay-away order pertaining to the same person. He challenges his convictions based on a response by the girlfriend’s mother to a particular question asked by the prosecutor during his jury trial. The judge sustained the defense objection and admonished the jury several times to not consider the answer. The court properly denied a mistrial motion by defense counsel. We have reviewed the record and find no error and therefore affirm the conviction. STATEMENT OF THE CASE On February 29, 2012, and then on August 23, 2012, the District Attorney of San Mateo County filed separate informations, case Nos. SC075263 and SC076373. The trial court consolidated the two informations on November 30, 2012. On December 12, 2012, the district attorney filed an amended information charging appellant with infliction of corporal injury within seven years of three prior

qualifying convictions (Pen. Code, § 273.5, subd. (a) & former subd. (e), now subd. (f)1 (count 1)) and alleged an enhancement for having committed the offense while on bail and probation ineligibility based on having committed two prior felony offenses (§§ 12022.1, 273.5, 1203, subd. (e)(4)); misdemeanor violation of a stay-away protective order (§ 166, subd. (c)(1)) (count 2); and misdemeanor battery on a cohabitant (§ 243, subd. (e)(1)) (count 3). On December 17, 2012, the jury found appellant guilty of all charges. On December 18, 2012, the trial court found true the alleged prior convictions and bail enhancement allegation. On October 17, 2014, the trial court sentenced appellant to a term of 16 months consecutive to an 13-year term imposed for the offenses pending when appellant committed these offenses. On October 27, 2014, appellant filed his timely notice of appeal. STATEMENT OF FACTS A. The July 8, 2011 Incident. At trial, victim Amanda Sanchez was deemed unavailable and the district attorney was permitted to use the transcript from the preliminary hearing occurring on February 16, 2012, concerning the attack on July 8, 2011. The transcript was admitted pursuant to Evidence Code section 1291. Amanda Sanchez had been dating appellant for approximately four years. Sanchez stated she had been living with appellant for approximately one year on this date and she had a child who was 20 months old. On the night of July 7, 2011, Sanchez had gone out with her girlfriends after work. Appellant was entrusted with the care of the infant while she was out. Sanchez arrived home around 11:00 p.m. When she entered, Sanchez was irritated appellant had asked her to return sooner than she wanted. The