Filed 9/24/13 P. v. Shepard CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,                                                          B242135
                                                                     (Super. Ct. No. BA378645)
                 Plaintiff and Respondent,

         v.

VERNON D. SHEPARD,
          Defendant and Appellant.
__________________________________
In re
                                                                     B244346
         VERNON D. SHEPARD,                                          (Super. Ct. No. BA378645)
                          on Habeas Corpus.



         APPEAL from a judgment of the Superior Court of Los Angeles County. William
C. Ryan, Judge. Judgment of conviction affirmed.
         ORIGINAL PROCEEDING on petition for writ of habeas corpus. William C.
Ryan, Judge. Writ granted and matter remanded for resentencing.
         James Koester, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul Roadarmel, Jr., and Robert
C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
       An information, filed on December 30, 2010, charged Vernon D. Shepard
with one count of willful infliction of corporal injury on a cohabitant (Pen. Code,
§ 273.5, subd. (a) (count 1))1 and one count of contempt of court (§ 166, subd. (c)(1)
(count 2)). The information specially alleged that Shepard had a prior conviction for
voluntary manslaughter that qualified as a strike under the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms within the
meaning of section 667.5, subdivision (b).
       After trial, the jury found Shepard guilty on both counts. In a bifurcated
proceeding, Shepard admitted that he had a prior conviction for voluntary manslaughter
for purposes of sentencing under the Three Strikes law. He also admitted that the
voluntary manslaughter conviction and a conviction for violation of Health and Safety
Code section 11350 qualified him for sentencing under section 667.5, subdivision (b).
The trial court sentenced Shepard to a state prison term of six years, consisting of the low
term of two years for corporal injury, doubled pursuant to the Three Strikes law, plus two
years under section 667.5, subdivision (b), for prior prison terms.
       On appeal, Shepard contends that reversal of the judgment on count 1 is required
because (1) admission of certain statements by the victim to a police officer regarding a
prior incident of uncharged domestic violence constituted a prejudicial violation of his
constitutional right to confrontation of witnesses; (2) the trial court prejudicially erred by
failing to instruct the jury on battery on a cohabitant (§ 243, subd. (e)(1)), a lesser
included offense of willful infliction of corporal injury on a cohabitant; (3) the court erred
by failing to give a unanimity instruction; and (4) CALCRIM No. 852, under which the
court instructed the jury, is unconstitutional. We disagree with Shepard’s contentions.
In a petition for a writ of habeas corpus, which we consider in conjunction with the
appeal, Shepard contends that he was subject to punishment for only one enhancement
under section 667.5, subdivision (b), because abstracts of judgment demonstrate that he
served only one prior prison term for the two alleged prior convictions. We agree with

1
       Statutory references are to the Penal Code unless otherwise noted.

                                               2
Shepard that he should be punished for only one prior prison term enhancement and thus
grant his petition for a writ of habeas corpus and remand the matter for resentencing.
                                       DISCUSSION
1.     Shepard Did Not Suffer a Prejudicial Violation of His Constitutional Right to
       Confrontation Requiring Reversal of the Judgment on Count 1
       “The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.’” (Crawford v. Washington (2004) 541 U.S. 36, 42.) “[T]his provision bars
‘admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.’” (Davis v. Washington (2006) 547 U.S. 813, 821.) “Only [testimonial]
statements . . . cause the declarant to be a ‘witness’ within the meaning of the
Confrontation Clause. [Citation.] It is the testimonial character of the statement that
separates it from other hearsay that, while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.” (Ibid.) “Statements are
nontestimonial when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” (Id. at p. 822, fn. omitted.) “‘Confrontation clause violations
are subject to federal harmless-error analysis . . . .’ [Citation.] We ask whether it is clear
beyond a reasonable doubt that a rational jury would have reached the same verdict
absent the error. [Citation.]” (People v. Loy (2011) 52 Cal.4th 46, 69-70, citing
Chapman v. California (1967) 386 U.S. 18, 24.)
       In connection with the charge of willful infliction of corporal injury on a
cohabitant, the People introduced evidence under Evidence Code section 1109,
subdivision (a)(1), of three prior uncharged reports of domestic violence by Shepard




                                              3
against the victim, his cohabitant and the mother of his children.2 One of the prior
uncharged reports of domestic violence involved an incident on December 3, 2004.
According to the evidence, on that day, at approximately 8:45 a.m., the police arrived at
the home where Shepard lived with the victim in response to a battery, domestic violence
radio call. One officer knocked on the door, and the victim answered, stating, “‘He’s in
here. He’s in here. I called the police.’” She pointed to a man inside the house, who was
determined to be Shepard. To deal with the “tactical situation,” the officer detained
Shepard and placed him in handcuffs. The victim told the officer that Shepard “had
assaulted her.” “She was very excited. [The officer] remember[ed] her talking very fast,
very animated.” She told the officer “that she was pushed. [Shepard] had used both
hands and pushed her, struck her chest area and caused her to fall back onto a bedroom
door.” The victim had asked Shepard to leave and he yelled at her and grabbed her wrist.
The victim broke out of the grasp, ran out of the house and called 911. She apparently
returned to the house before the officer arrived. The officer did not see any visible
injuries on the victim but observed a crack of approximately two feet on the bedroom
door.
        Shepard contends that admission of certain evidence with respect to the
December 3, 2004 incident violated his right to confrontation because the victim
did not testify at trial and some of her hearsay statements to the officer were testimonial
in nature. According to Shepard, he “is not contesting whether [the victim’s] initial
statements that ‘[h]e’s in []here, he’s in []here,’ are testimonial. He is only arguing that
the statements that [the victim] made after [he] had been taken into custody and [the
victim] was then asked questions and described the facts of the alleged assault were
testimonial for Confrontation Clause purposes.” Even if the statements the victim made
to the officer after Shepard had been handcuffed were testimonial in nature, and thus their

2
        Evidence Code section 1109, subdivision (a)(1), provides in relevant part that,
“in a criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic violence is not
made inadmissible by [s]ection 1101 if the evidence is not inadmissible pursuant to
[s]ection 352.”

                                              4
admission violated his right to confrontation, “it is clear beyond a reasonable doubt that a
rational jury would have reached the same verdict absent the error. [Citation.]” (People
v. Loy, supra, 52 Cal.4th at pp. 69-70.)
       The evidence relating to the charge of willful infliction of corporal injury on a
cohabitant demonstrates that, on November 30, 2010, the victim’s son called 911 and
reported domestic violence. A police officer and his partner arrived at the home the
victim shared with Shepard and her children, announced their presence at the front door
and received no response. The officer reported that they “hear[d] a struggle from the
inside of the house. . . . It sounded like there were running people, running inside, and
then it sounded like someone was being slammed.” The officer heard a female voice
screaming. After requesting additional units, the officer and his partner jumped a fence
and went down a walkway to the rear of the house, identifying themselves and giving
commands to open the back door. “That’s when in the back [they] hear[d] glass
shattering inside of the house” along the walkway. Simultaneously, they heard a female
again screaming. “Right after [they] hear[d] the glass shatter, shortly after, immediately
after, a woman runs to the back where [they] were at, the rear entrance, and opens the
door for [them].” She exited the house with her children, “appear[ing] to have blood on
her face coming out of her lip, and . . . her hand had blood on it.” The victim told officers
that “she had gotten home with her kids; and, apparently, . . . Shepard, was home.
He had been drinking. He seemed to be upset for her coming home so late. After the
kids fell asleep, he just became angry and started hitting her, just pulled her by the hair,
dragged her around the house, and then he covered her . . . mouth with his hands to
prevent her from screaming. After he did that, he slammed her a few times on the face,
causing her the injury she has on her lip. . . . [H]e was trying to put her head through the
glass window . . . , and . . . she said she was able to put her hand up . . . as she’s being
pushed to the window, she puts it up and her hand goes through the window[,] which
causes the injury on her hand.”
       Although the victim changed her story at the preliminary hearing, stating that
Shepard did not cause her injuries and that she fell because she had been drunk, her

                                               5
statement to the officer at the scene was consistent with what the officer and his partner
heard and saw when they responded to the domestic violence 911 call. Evidence also
establishes that Shepard called the victim on December 15, 2010 and told her “if you’re
not even so much there. Be somewhere else though where there’s no you know contact
whatsoever. Until this is . . . you know because without ya’ll it’s a wrap. Period.
Without ya’ll it’s a wrap.”
       In addition to the evidence regarding the charged violation, other evidence of prior
uncharged domestic violence, about which Shepard does not complain, demonstrates that,
on November 22, 2004, the victim called 911 and reported that Shepard had his “hand
around [her] neck . . . .” And, on September 9, 2009, a police officer responded to the
victim’s home and observed her with a swollen eye, discolored lower lip and bruised arm.
“She stated that [Shepard] [had] punched her in the face and grabbed her and thr[own]
her down on the floor.” The officer heard Shepard yell at the victim “to tell [the police]
the truth that he did not punch her in the face,” and the victim recanted her prior
statement.
       Given the strong evidence regarding the charged violation of section 273.5,
subdivision (a), and the evidence of prior uncharged domestic violence about which
Shepard does not complain, the trial court’s failure to exclude any testimonial statements
by the victim on November 30, 2004 beyond a reasonable doubt did not prejudice
Shepard.
2.     The Trial Court Was Not Required to Sua Sponte Instruct on the Lesser Included
       Offense of Battery on a Cohabitant
       The trial court must instruct the jury, whether sua sponte or on the defendant’s
request, on a lesser included offense “‘when the evidence raises a question as to whether
all of the elements of the charged offense were present [citation], but not when there is
no evidence that the offense was less than that charged. [Citations.]’” (People v.
Breverman (1998) 19 Cal.4th 142, 154.) Battery of a cohabitant is a lesser included
offense of willful infliction of corporal injury on a cohabitant. (People v. Jackson (2000)
77 Cal.App.4th 574, 580.) Willful infliction of corporal injury on a cohabitant contains


                                              6
the additional element that the defendant’s direct application of force to the victim caused
injury to the victim. (Ibid.)
          Shepard contends that the trial court was required to sua sponte instruct the jury on
the lesser included offense of battery of a cohabitant based on the victim’s preliminary
hearing testimony (admitted at trial) that Shepard did not cause the injuries to her lip and
hand on November 30, 2010 and that, because of her intoxicated state, she hurt her hand
by hitting and breaking the window when she was angry and split her lip “‘[f]rom [her]
falling, acting all drunk and stupid . . . .’” Shepard maintains that, based on the
testimony, “the jurors could reasonably have concluded that[,] although [he] assaulted
[the victim] when he pulled her around by her hair or slapped her face, the traumatic
injuries to [the victim’s] lip and hand were caused by [the victim] herself when she either
stumbled or thrust her head into the window as a result of her anger and intoxicated
state.”
          The problem with Shepard’s argument is the victim testified that she and Shepard
had no altercation on November 30, 2010. She denied telling police officers that Shepard
had dragged her around the house by her hair and that he had pushed and slapped her.
According to the testimony, therefore, Shepard did not pull the victim’s hair, slap her
face or otherwise touch her, as is necessary to his argument that the trial court should
have instructed on the lesser included offense of battery on a cohabitant. In other words,
if the jurors believed the testimony, they would have concluded that Shepard had
committed no crime at all, not that he had committed the lesser included offense of
battery on a cohabitant. No substantial evidence thus supported an instruction on the
lesser included offense of battery on a cohabitant, and the trial court was not required to
give one.
3.        The Trial Court Did Not Err By Failing to Give a Unanimity Instruction
          A criminal defendant’s right to a jury trial includes the right to a unanimous
verdict, including unanimous agreement on the act constituting the charged offense.
(Cal. Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th 297, 304.) As a result,
“‘when an accusatory pleading charges a single criminal act and the evidence shows

                                                7
more than one such unlawful act, either the prosecution must select the specified act
relied upon to prove the charge or the jury must be instructed . . . that it must
unanimously agree beyond a reasonable doubt that defendant committed the same
specific criminal act. [Citations.]’ [Citation.]” (People v. Moore (1986) 185 Cal.App.3d
1005, 1014, italics & fn omitted; see also People v. Beardslee (1991) 53 Cal.3d 68, 93.)
When required under the facts, even if not requested, a unanimity instruction must be
given by the court sua sponte. (Moore, at p. 1014.) “Neither instruction nor election [is]
required, however, if the case falls within the continuous course of conduct exception.
This exception arises in two contexts. The first is when the acts are so closely connected
that they form part of one and the same transaction, and thus one offense. [Citation.]
The second is when . . . the statute contemplates a continuous course of conduct of a
series of acts over a period of time.” (People v. Thompson (1984) 160 Cal.App.3d
220, 224.)
       Shepard contends the trial court was required to give a unanimity instruction
because “the prosecution offered two distinct and separate incidents of alleged battery as
the basis for the inflictions of the two distinct injuries that formed the basis of the
traumatic condition element of the . . . section 273.5, subdivision (a)[,] offense:
[Shepard’s] slapping [the victim’s] face, which caused the traumatic injury to her lip, and
[Shepard’s] trying to push [the victim’s] head through the window[,] which caused the
injury to her hand.” We disagree. Contrary to Shepard’s contention, the prosecutor did
not separate the injury to the victim’s lip from the injury to her hand in arguing for a
conviction based on a violation of section 273.5, subdivision (a). The evidence
demonstrates that the injuries to the victim’s lip and hand were based on acts so closely
connected, namely Shepard’s hitting the victim and then attempting to push her through
the window, that they occurred during one transaction. Thus, the continuous course of
conduct exception applies, rendering a unanimity instruction unnecessary.




                                               8
4.     Shepard Is Not Entitled to Reversal of the Judgment on Count 1 Based on an
       Unconstitutionality Argument as to CALCRIM No. 852
       Shepard contends that he is entitled to reversal of the judgment because
CALCRIM No. 852, under which the trial court instructed the jury regarding evidence of
prior uncharged domestic violence, is unconstitutional. According to Shepard, the
instruction violates due process by lessening the People’s burden of proof beyond a
reasonable doubt.3 Shepard recognizes that the Supreme Court in People v. Reliford
(2003) 29 Cal.4th 1007 (Reliford) rejected a constitutionality challenge to CALJIC
No. 2.50.01, which involves uncharged prior sexual assault, and concedes that instruction
is analytically identical to CALCRIM No. 852. He also acknowledges that courts of
appeal have determined that Reliford applies equally to CALCRIM No. 852. (People v.
Johnson (2008) 164 Cal.App.4th 731; People v. Reyes (2008) 160 Cal.App.4th 246.)
We of course are bound by Reliford. (See Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

3
        The trial court instructed under CALCRIM No. 852, “The People presented
evidence that the defendant committed domestic violence that was not charged in this
case[.] [¶] Domestic violence means abuse committed against an adult who is a spouse,
cohabitant, or person with whom the defendant has had a child. [¶] Abuse means
intentionally or recklessly causing or attempting to cause bodily injury, or placing
another person in reasonable fear of imminent serious bodily injury to himself or
herself or to someone else. [¶] The term cohabitant has been defined in other instruction.
[¶] You may consider this evidence only if the People have proved by a preponderance of
the evidence that the defendant in fact committed the uncharged domestic violence.
Proof by a preponderance of the evidence is a different burden of proof from proof
beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you
conclude that it is more likely than not that the fact is true. [¶] If the People have not met
this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the
defendant committed the uncharged domestic violence, you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to commit
domestic violence and, based on that decision, also conclude that the defendant was
likely to commit and did commit corporal injury resulting in a traumatic condition as
alleged in Count 1. If you conclude that the defendant committed the uncharged
domestic violence, that conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged
crime. . . . The People must still prove each charge beyond a reasonable doubt. [¶] Do not
consider this evidence for any other purpose.”

                                              9
       Shepard nevertheless maintains that the Supreme Court in Reliford did not
consider CALJIC No. 2.50.01 within the totality of all instructions, particularly
instruction on circumstantial evidence. In upholding the constitutionality of CALJIC
No. 2.50.01, however, the Supreme Court specifically noted that the instruction did not
suggest the People could prove the charged crime by a standard less than proof beyond a
reasonable doubt in part because “the jury [also] was told that circumstantial evidence
could support a finding of guilt of the charged offenses only if the proved circumstances
could not be reconciled with any other rational conclusion (CALJIC No. 2.02)—which is
merely another way of restating the reasonable-doubt standard. [Citation.] The jury thus
would have understood that a conviction that relied on inferences to be drawn from
defendant’s prior offense would have to be proved beyond a reasonable doubt.”
(Reliford, supra, 29 Cal.4th at p. 1016.) Contrary to Shepard’s contention, therefore,
the Supreme Court considered CALJIC No. 2.50.01 in the context of instruction on
circumstantial evidence and, in fact, concluded that one of the circumstantial evidence
instructions buttressed its rejection of the constitutionality challenge to CALJIC
No. 2.50.01. Although the Supreme Court did not mention CALJIC Nos. 2.00 and 2.01,
the circumstantial evidence instructions to which Shepard refers, those instructions, along
with CALJIC No. 2.02, as discussed in Reliford, reinforce the principle that a conviction
based on circumstantial evidence must be by proof beyond a reasonable doubt. As a
result, no merit exists to Shepard’s attempt to avoid Reliford based on the circumstantial
evidence instructions.
       In addition, Shepard maintains that CALCRIM No. 852 conflicts with United
States Supreme Court authority, including Boyd v. United States (1892) 142 U.S. 450,
requiring use of a limiting instruction when the jury considers evidence of prior criminal
conduct or bad acts. CALCRIM No. 852, however, contains such a limiting principle by,
as the trial court here instructed, telling jurors, “Do not consider this evidence for any
other purpose.” Thus, the instruction limits use of evidence of uncharged prior domestic
violence so as not to infringe on the principles articulated in the United States Supreme
Court authority cited by Shepard.

                                              10
       In his reply brief, Shepard contends that, even if Reliford is proper in the context
of uncharged prior sexual assault, it should not be applied to uncharged prior domestic
violence. As Shepard acknowledges, however, the instructions regarding uncharged prior
sexual assault and uncharged prior domestic violence are analytically identical for
constitutionality purposes, and the appellate courts have so held. (E.g., People v.
Johnson, supra, 164 Cal.App.4th at pp. 739-740 [Reliford applies to case involving
uncharged prior domestic violence because “Evidence Code sections 1108, allowing
admission of evidence of uncharged sexual offenses, and 1109, allowing admission of
evidence of uncharged domestic violence, are ‘virtually identical[,]’” as are jury
instructions on those statutes]; People v. Pescador (2004) 119 Cal.App.4th 252, 261
[applying Reliford in domestic violence case as, “[f]or the purposes of evaluating the
constitutional validity of the instructions [pertaining to uncharged prior sexual
assault and uncharged domestic violence], there is no material difference between
CALJIC No. 2.50.01 and CALJIC No. 2.50.02”].) Shepard provides no basis for us
to deviate from this authority.
5.     Shepard Should Receive Only One Prior Prison Term Enhancement
       In a habeas corpus petition accompanying his appeal, Shepard contends that he
received ineffective assistance of counsel in connection with his admission of his prior
convictions within the meaning of section 667.5, subdivision (b). According to Shepard,
his defense counsel did not adequately investigate his prior convictions because
abstracts of judgment demonstrate that he served one, not two, prison terms for his
prior convictions for voluntary manslaughter and violation of Health and Safety Code
section 11350 and thus was subject to one, not two, prior prison term enhancements
under section 667.5, subdivision (b). Shepard asks us to remand for resentencing without
imposition of the second prior prison term enhancement.
       The People do not dispute that the abstracts of judgment establish that Shepard
served only one prior prison term but contend that he did not prove ineffective assistance
of counsel or that any lesser prison term is warranted under the circumstances of the case
and the probation report, which identified six aggravating and no mitigating factors.

                                             11
The People request that we leave the sentence as is at six years, which is the length of
sentence defendant argued for in the trial court, or remand for resentencing so that the
trial court can impose a seven-year sentence, consisting of the mid-term of three years,
doubled pursuant to the Three Strikes law, plus one year for the prior prison term
enhancement.
       We need not determine whether Shepard’s counsel was ineffective in
connection with Shepard’s admission of his prior convictions. (See In re Brown
(2013) 218 Cal.App.4th 1216, 1223[“[d]efense counsel’s duty to investigate extends
to prior conviction allegations that, if proven, may increase the defendant’s sentence.
Thus, ‘[w]henever a sentenced is enhanced . . . due to a prior conviction, it is counsel’s
obligation to examine the validity of the prior or underlying conviction’”].) Because the
abstracts of judgment show that he served only one prior prison term within the meaning
of section 667.5, subdivision (b), we conclude that imposition of two prior prison term
enhancements was unauthorized, even though the total six-year term is within the range
of a lawful sentence. We remand the matter for resentencing. Although Shepard
maintains that, if the trial court resentences him, it may not impose a prison term greater
than the six years he originally received, that issue is not now before us. On remand, the
trial court may impose the sentence it determines is proper under the circumstances of the
case, given that Shepard is subject to only one prior prison term enhancement under
section 667.5, subdivision (b). After resentencing, if Shepard believes his sentence is
improper, he of course may appeal.




                                             12
                                      DISPOSITION
       On the appeal, the judgment as to Shepard’s convictions is affirmed. On the
original proceeding, the petition for a writ of habeas corpus is granted, and the matter is
remanded for resentencing.
       NOT TO BE PUBLISHED.




                                                  ROTHSCHILD, J.
We concur:



              MALLANO, P. J.



              JOHNSON, J.




                                             13
