People v. Hebert CA2/6

Filed 4/21/21 P. v. Hebert 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B303767 (Super. Ct. No. 18F-07714) Plaintiff and Respondent, (San Luis Obispo County)

v.

TYRELL PAUL HEBERT,

Defendant and Appellant.

Tyrell Paul Hebert appeals the judgment entered after a jury convicted him of inflicting corporal injury on a spouse or cohabitant (Pen. Code,1 § 273.5, subd. (a); count 1), misdemeanor cruelty to a child (§ 273a, subd. (b); count 2), and attempted criminal threats (§§ 422, subd. (a), 664; count 3). The trial court suspended imposition of sentence and placed appellant on four years probation with terms and conditions including that he serve 240 days in county jail. Appellant contends the court

1 All statutory references are to the Penal Code.

abused its discretion in denying his motion to reduce counts 1 and 3 to misdemeanors pursuant to section 17, subdivision (b)(3). We affirm. FACTS AND PROCEDURAL HISTORY Appellant and Jane Doe began dating in 2015 and subsequently had a child together. On August 2018, appellant and Doe were living together in Atascadero with their two-year- old daughter, Doe’s 12-year-old daughter K., and appellant’s three children from a prior relationship. That morning, Doe called 911 and reported that “[my] boyfriend . . . stormed in[to] my house, hit me, [and] threw me to the ground.” Doe also said that appellant had just left in his van. When asked for appellant’s name, Doe began crying, said “nevermind[,] I’m fine,” and hung up. Atascadero Police Officer Ronnie Overacker was dispatched to Doe’s residence to investigate. Doe told Officer Overacker that she and appellant had gotten into an argument the prior evening. That morning, appellant became upset and threw a video game console out the window, poured water on Doe’s laptop computer, and ransacked their bedroom. Appellant left the house and Doe “locked the door and said you need to go and calm down for a little bit.” Appellant re-entered the house through a window, woke up his three eldest children, and said “let’s go.” Doe asked appellant to give her the keys to a vehicle they had recently purchased with her money. Appellant replied “no[,] fuck you” and pushed Doe, causing her to fall on a couch. Doe asked, “this is how you are going to act in front of the children?” Appellant punched her in the legs with his fists and stepped on her toes. Doe stood up, grabbed a toolbox in an attempt to block appellant from