People v. Horton CA2/8

Filed 7/12/16 P. v. Horton CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B264443

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA065122) v.

MONTINEZ J. HORTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Reversed and remanded with directions.

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

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The trial court sentenced appellant Montinez Horton to a five-year upper term in state prison upon a conviction by plea for corporal injury to a cohabitant or co-parent of a child, with a prior domestic violence conviction. (Pen. Code, § 273.5, subd. (f)(2).)1 The court imposed sentence after finding that Horton violated the terms of a Cruz waiver.2 On appeal, Horton contends the evidence was insufficient to support the court’s finding that he willfully violated the Cruz waiver. We reverse and remand with directions for further proceedings consistent with this opinion. FACTS Horton stayed off and on with Tiffany M. while visiting their preschool-aged son. On January 13, 2015, Horton dragged Tiffany across the floor by her hair, hit her in the head several times and strangled her until she nearly lost consciousness. Horton had been convicted of a domestic violence battery (§ 243) within seven years of the attack on Tiffany. The couple’s son was in the family home during the attack. Tiffany ran outside after the attack and called the Sheriff’s Department. Deputies responded to the scene and forced entry through the front door. They found Horton hiding under a bed with the couple’s son. While Horton was in the rear seat of the patrol car, he kicked out a window in the car. In January 2015, the People filed a felony complaint charging Horton with corporal injury of a cohabitant or child’s parent after a prior conviction for domestic violence (count 1; § 273.5, subd. (f)(2)); vandalism over $400 damage (count 2; § 594, subd. (a)); and misdemeanor child cruelty (count 3; § 273a, subd. (b)).