People v. Monge CA1/3

Filed 3/3/16 P. v. Monge CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A144045 v. JONATHAN MONGE, (City & County of San Francisco Super. Ct. No. SCN222177) Defendant and Appellant.

Defendant Jonathan Monge appeals his conviction for domestic violence, assault, and battery, arguing that the trial court abused its discretion in admitting evidence of a prior domestic violence incident and that the prosecutor committed misconduct in closing argument. We find no error and therefore shall affirm. Statement of the Case Defendant was charged with four felony counts: (1) attempted murder (Pen. Code, §§ 187, subd. (a), 664); (2) domestic violence (Pen. Code, § 273.5, subd. (a)); (3) assault with a deadly weapon, not a firearm (Pen. Code, § 245, subd. (a)(1)); and (4) battery with serious bodily injury (Pen. Code, § 243, subd. (d)). In connection with counts one, two and four, it was charged that defendant used a deadly weapon in violation of Penal Code section 12022, subdivision (b)(1). In connection with counts one, two, and three, infliction of great bodily injury in violation of Penal Code section 12022.7, subdivision (e) was charged. At trial, San Francisco Police Officer Michael Cota testified that around 9:00 p.m. on March 5, 2014, he responded to an emergency call at 26th and Bryant streets. Near a

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freeway overpass he found Djohoriah Gonzales in a fetal position, crying and yelling, with her face and arms covered in blood. She had puncture wounds on her left and right cheeks, right hand, right shoulder, left forearm, left hand, and lacerations on her head. Gonzales stated that defendant had attacked her; she told him that she had been sleeping next to defendant and awoke to defendant stabbing her with a screwdriver. In addition, Gonzales had reported that this was not the first time she had been abused by defendant. As a result of her injuries, Gonzales was hospitalized for two days. Gonzales also testified to being attacked by defendant with a screwdriver, and other officers who arrived at the scene provided additional corroboration of her condition at the time. An emergency room physician testified to the nature of her injuries. Gonzales also testified to a November 2013 incident in which defendant had kicked her in the eye. A jury found defendant guilty of counts two through four, and found the enhancements to be true. The court imposed an eight-year prison term. Defendant timely filed a notice of appeal. Discussion 1. The Trial Court Did Not Abuse Its Discretion by Admitting Testimony of an Uncharged Prior Incident. Defendant contends the court abused its discretion in admitting Gonzales’s testimony about an uncharged prior domestic violence incident. Prior to the start of trial, the prosecution sought permission to present testimony of two prior incidents in which Gonzales would testify that she had been physically attacked by defendant. The court excluded testimony concerning one of those incidents on the ground that its prejudicial effect outweighed its probative value but, over defendant’s objection, permitted Gonzales to testify to an eye-kicking incident that occurred in November 2013 that was reported in a contemporaneous police report. Gonzales testified that in November 2013 she and defendant were sleeping on a sidewalk near an abandoned house around 21st and Shotwell streets when, around 3:00 a.m., after an argument, defendant kicked her in the eye. She could not see out of the injured eye for about four to five days.