People v. Osborne CA3

Filed 5/11/16 P. v. Osborne CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C078208

Plaintiff and Respondent, (Super. Ct. No. 62115315)

v.

JOAL OSBORNE,

Defendant and Appellant.

Defendant Joal Osborne was convicted of multiple domestic violence charges, including corporal injury resulting in a traumatic condition to Dusty L., his cohabitant and the mother of his children. (Pen. Code, § 273.5, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code.) Although Dusty testified at trial that she broke her arm when she fell, Dusty told the police that defendant broke her arm when she defensively raised her arms to stop defendant from striking her in the face.

1

Defendant contends Dusty’s story to the police officer was improbable, and therefore there was insufficient credible evidence to sustain his conviction. We note the record shows the court imposed and stayed execution of a nine-year- eight-month prison sentence, but the clerk’s minutes and probation order improperly state the total sentence as nine years six months. We shall modify the probation order, direct correction of the clerk’s minutes, and affirm the judgment as modified.

FACTS AND PROCEEDINGS

Dusty and defendant were in a relationship for about seven years, and they have two young children together. In 2012, they were having financial difficulties, as Dusty only earned $9.50 per hour, and defendant was unemployed, caring for the children and attending school. They argued regularly about money, and their relationship was rocky. They lived in the same house along with defendant’s grandparents. On March 30, 2012, Dusty suffered a broken arm just above the wrist. Dusty had two different explanations for how her arm was broken. She testified at trial and previously told the treating emergency room staff and her mother when they spoke while she was in the emergency room that she fell while feeding her goats. She also told her mother and the police that defendant broke her arm when she defensively raised her arms as he was trying to hit her while they were seated in the car. According to the treating emergency room physician, the injury could have been caused by a fall or by a defensive block of a blow from a fist to the face. The physician also testified Dusty did not mention any domestic violence when he treated her, and he did not suspect domestic violence at the time. Dusty spoke to the police in June 2012, after her mother called 911 on her behalf, when the two discussed an argument between Dusty and defendant over money and household chores. Defendant said Dusty needed to find a new place to live, and Dusty was worried defendant would prevent her from seeing her children. Dusty was also upset