People v. Potts CA3

Filed 2/24/16 P. v. Potts CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C078276

Plaintiff and Respondent, (Super. Ct. No. 12F7995)

v.

NOAH RYAN POTTS,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND Defendant shot and killed his brother, Sonny Potts. Defendant was charged by first amended information with first degree murder (Pen. Code,1 § 187, subd. (a)), a serious and violent felony within the meaning of sections 1192.7, subdivision (c), and

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

1

667.5, subdivision (c)(1). The information also alleged defendant committed the offense while lying in wait (§ 190.2, subd. (a)(15)), and that he intentionally and personally discharged a firearm causing the victim great bodily injury or death (§ 12022.53, subd. (d)). Trial Evidence In November 2012, defendant was staying in a house in Big Bend owned by his father, Lester Potts, who had asked defendant to stay there in Lester’s absence to preserve Lester’s land assignment. Although Lester said he did not intend to return to the house, both he and defendant’s brother, Sonny Potts, had moved back into the house several months prior.2 Defendant testified at trial that, in the months prior to the crime, Sonny had sexually assaulted him on several occasions. The first time occurred two and a half to three months prior to the incident. Defendant came home after drinking and using methamphetamine. Lester was passed out in the back bedroom. Sonny was high on methamphetamine and shadowboxing in front of the television. Defendant stripped down to his boxer shorts and a T-shirt and passed out on the bed in one of the bedrooms. He awoke to find Sonny holding him down and forcibly sodomizing him. Defendant managed to fight Sonny off and ran out of the house. A week later when defendant stopped by the house to get some clothing, Sonny cornered him in a hallway, grabbed him around the neck, gave him a sloppy kiss on the cheek, grabbed defendant’s crotch and said, “ ‘Come on, brother. Give me some love.’ ” Defendant was able to get loose and leave the house. A third incident happened a month or so later, when Sonny pushed defendant up against the wall by the throat and held him there while Sonny pulled his own penis out and tried to force defendant’s head down. Again, defendant managed to