People v. Semlinger CA2/6

California Court of Appeal Sep 28, 2020 No. B296258Unpublished

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Holding. The court affirmed the defendant's convictions for assault with a deadly weapon and battery, holding that the trial court did not err in its jury instructions or sentencing discretion.

Issues

Whether the trial court erred in providing a mutual combat instruction to the jury.
Whether the trial court erred in providing a trespass instruction regarding the defendant's presence on the property.
Whether the trial court abused its discretion in sentencing by refusing to reduce the felony charge to a misdemeanor or strike prior convictions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The jury was instructed that some of the instructions may not apply depending on the findings of fact, and to follow the instructions that do apply.”

“There was substantial evidence to support giving CALCRIM No. 3475.”

“The record shows that the trial court thoroughly considered all the facts, and had a rational basis for denying Semlinger’s section 17, subdivision (b) motion.”

Filed 9/28/20 P. v. Semlinger CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B296258 (Super. Ct. No. 2016019907) Plaintiff and Respondent, (Ventura County)

MARK STEVEN SEMLINGER,

Defendant and Appellant.

A jury found Mark Steven Semlinger guilty of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and a misdemeanor battery (§ 243, subd. (e)(1)). The trial court found that Semlinger had previously been convicted of a serious felony, (§ 667, subd. (a)(1)), and that the previous conviction constituted a strike within the meaning of the three strikes law (§§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)).

All statutory references are to the Penal Code unless 1

otherwise stated.

The trial court sentenced Semlinger to the low term of two years for the assault, doubled to four years under the three strikes law, plus a consecutive five years for the prior serious felony conviction, for a total of nine years. The court sentenced Semlinger to a concurrent term of 90 days on the misdemeanor. We affirm. FACTS Richard Weyrauch owned a house in Simi Valley. Weyrauch rented rooms in the house. On May 21, 2016, James Williams, Heather Nesbitt, and her young child were among those living in the house with Weyrauch. Semlinger did not live there. Nesbitt was Semlinger’s fiancée and the young child was theirs. On the night of May 21, 2016, Nesbitt and Semlinger were arguing loudly outside the house. Nesbitt had asked Semlinger not to come to the house, but Semlinger wanted to see his child. The argument could be heard inside. Weyrauch turned on security cameras that were positioned around the outside of his home. Weyrauch and Williams went out to the front porch to try to get the couple to stop arguing. They were not successful, and the arguing continued. Semlinger grabbed Nesbitt and dragged her across the driveway and away from the house. Semlinger is six feet one inch tall and weighs 200 pounds. Nesbitt is five feet three inches tall and weighs 130 pounds. Williams, who was in the house watching through the security cameras, became agitated. Weyrauch warned Williams to stay out of the argument. Nevertheless, Williams came out of the house hollering. Williams punched Semlinger in the face and

People v. Semlinger CA2/6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARK STEVEN SEMLINGER,

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