Filed 4/12/16 P. v. Penoli CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                    A146726
v.
MARK WILLIAM PENOLI,                                                (Sonoma County
                                                                    Super. Ct. No. SCR656228)
         Defendant and Appellant.



         In this matter, appellant appeals his convictions after a bench trial. His appellate
counsel has reviewed the record in this case and she has concluded the appeal should
proceed based on People v. Wende (1979) 25 Cal.3d 436. We are asked to conduct an
independent review of the record in this case. Counsel has advised appellant of her
decision in this regard and told her client he may chose to file a supplemental brief with
this court addressing issues of his concern. She advised appellant he should file such
materials within 30 days of her notification. We have not received from appellant any
supplemental brief. We have conducted our review of the record and determined the
appeal presents no valid legal issue which would cause us to overturn the judgment in
this case. We therefore affirm the judgment.
                                       STATEMENT OF THE CASE
         The District Attorney of Sonoma County filed an information in this matter on
November 4, 2014. Appellant was charged in count 1 with a felony violation of Penal
Code1 section 245, subdivision (a)(4) (assault by means of force likely to produce great
bodily injury). Count 2 alleged a felony violation of section 273.5, subdivision (f)(1)
(willful infliction of corporal injury resulting in a traumatic condition on a person with
whom defendant is in a dating relationship, within seven years of a prior conviction under
§ 273.5, subd. (a)). The information also alleged four prior prison convictions pursuant
to section 667.5, subdivision (b) and one prior strike pursuant to section 1170.12. Both
sides waived their right to a jury trial, the appellant agreeing to be tried by the court.
         After the presentation of evidence by both sides and argument by trial counsel, the
court recessed and reviewed the evidence. The court then found appellant guilty as
charged. Trial on the validity of the priors was bifurcated from the trial on the crimes
charged in the information.
         On June 17, 2015, appellant admitted the prior convictions alleged in the
information.
         Appellant made a motion to strike the prior convictions under People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero). He relied on a
neuropsychological evaluation that indicated appellant had an IQ of 69 after a history of
sustaining traumatic head injuries. He also moved for a new trial. The court denied each
motion.
         On October 22, 2015, appellant was sentenced to state prison for a total term of 12
years. The court imposed the mid-term of four years for the violation of count 2, which
was doubled by the prior strike convictions pursuant to section 1170.12. The court also
sentenced appellant to a total consecutive term of four years for the four prior prison
terms. (§ 667.5, subd. (b).)
         Appellant filed his notice of appeal on November 6, 2015.




1
    Unless otherwise stated, all statutory references herein are to the Penal Code.

                                               2
                                  STATEMENT OF FACTS
      During the proceedings involving this matter, the victim was identified as “Jane
Doe.” She testified she had been dating appellant for a couple of months before the
incidents that took place on September 15, 2014. On that date, Jane Doe met appellant at
a Motel 6 in Santa Rosa after he finished his work. Jane Doe went to the motel with her
18-month-old daughter and several clothing items. She planned on spending the night
with appellant. The two adults began drinking rum cocktails and brandy or whiskey and
coke in the room. Jane Doe acknowledged she was affected by the alcohol. The couple
watched TV and had sexual intercourse while Jane Doe’s daughter slept on the motel
bed. Jane Doe related the sex took place in the shower, while appellant contended they
had intercourse on the bed while the child slept. All was going well for several hours.
      After engaging in sex, appellant left the room to go to his Jeep. Jane Doe only had
on her tank top when he left the room. Returning to the room, appellant was visibly
incensed, accusing Jane Doe of cheating on him and being unfaithful. He became violent
towards her, choking her as he straddled her on the bed. She experienced difficulty
breathing. As he choked her, she urinated on herself. The choking went on for almost a
minute. She eventually managed to knee appellant in his private parts, causing him to
fall backwards. Once this happened, Jane Doe jumped off the bed, grabbed her daughter
and car keys and left the room.
      As Jane Doe drove from the parking lot, she opted to ram appellant’s Jeep with her
truck in anger. She drove directly to her father’s home. Her neck was sore. She called
911 and was recorded discussing the events in the motel room. When the police came to
her father’s home, they saw and photographed the bruises around her neck and shoulders.
Her neck was sore for several days.
      The prosecution also presented testimony from Diana Emerson, a registered nurse
and expert on domestic violence injuries, especially strangulation. She reviewed the



                                            3
photographs taken of Jane Doe within a couple of hours after the assault and concluded
the marks were consistent with a serious attempt to strangle the woman.
       Appellant also sent several text messages to Jane Doe on the night of the attack,
consisting of name-calling and telling her she should “rot in hell.” The police, after
meeting with Jane Doe, went to the motel, where they found and arrested appellant. He
told the police he only argued with Jane Doe over her cheating but denied any physical
contact with her like choking or other abusive behavior. When the police showed
appellant the text messages he sent her, he replied the police should “take him to jail.”
       Appellant presented a defense during the bench trial. He basically corroborated
Jane Doe’s account of the evening until the couple began arguing a few hours into the
visit. While she was in the shower after they had sex, he inspected her cell phone and
noticed certain text messages from another male. This upset appellant because he
believed the couple was in an exclusive dating relationship. He also saw she was buying
methamphetamine from the man on the messages. As the couple only argued, Jane Doe
became very upset and stormed out of the room with her child, wearing jeans and a tank
top. She rammed his Jeep in anger as she drove from the motel.
       The defense also presented a former boyfriend of Jane Doe, who related her
dishonesty over alleged injuries she attributed to the boyfriend. She made these claims
against the former boyfriend to gain custody of their child.
                                      DISCUSSION
       We have conducted a review of the record in the trial of the case. In this case, the
trial judge was actively involved in trial, ruling on several in limine motions, appointing
counsel for the witness Jane Doe when questions regarding her ramming appellant’s Jeep
was raised, and carefully ruling on trial objections during the hearing of the case. At the
end of the presentation of evidence and after argument by counsel, he recessed the
proceedings for a period of time to determine whether the prosecution had established
their burden in the case. When he resumed the bench after the recess, he stated his

                                             4
findings the appellant was guilty of each count. Additionally, at all times, appellant was
ably represented by trial counsel.
       Based on this record, we determine there is sufficient evidence to support the trial
court’s determination of guilt beyond a reasonable doubt. This court must decide, after
viewing the evidence in the light most favorable to the prosecution, whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. (Jackson v. Virginia (1979) 443 U.S. 307; People v. Johnson (1980) 26 Cal.3d
557, 578.) Applying this standard of review to the required elements of the two guilt
findings, we believe the prosecution sustained its burden.
       Regarding the charge of section 245, subdivision (a)(4), the evidence establishes
appellant strangled Jane Doe for a period up to a minute, causing her to nearly black out
and lose her breath. The prosecution presented in evidence photographs depicting
redness around her neck and other proof of bruising caused while appellant straddled her
on the bed. Expert testimony was presented in which Diane Emerson concluded the
photos showed serious choking, which endangered the life of Jane Doe if appellant had
not been interrupted by her “kneeing” him. Jane Doe persisted with discomfort for a
couple of weeks after the assault. This is a general intent crime. (People v. Williams
(2001) 26 Cal.4th 779, 790.) On the other hand, appellant maintained he only argued
with the victim and did not touch her in the motel in an aggressive fashion at all.
       Concerning the section 273.5 charge, the evidence shows Jane Doe and appellant
were in a dating relationship at the time of the assault. Indeed, it was appellant’s view
Jane Doe violated that relationship and he was angered by this. (CALCRIM No. 840.).
Appellant choked the victim in this case for a period of time, preventing her from
breathing; evidence of bruising of the neck was visible to responding officers. This was
therefore a traumatic condition. (§ 273.5, subd. (c); CALCRIM No. 840.)
       Regarding the sentencing in this case, the court imposed the middle term on count
two and doubled that with the prior strike. The court properly exercised its discretion

                                             5
when it denied the Romero motion (Romero, supra, 13 Cal.4th 497), as well as the
motion for new trial. The additional four years based on the four prior state prison
sentences were valid in this case; the court exercised its discretion here.
                                      DISPOSITION
       In summary, we therefore affirm the judgment.



                                                  _________________________
                                                  DONDERO, J.


We concur:


_________________________
HUMES, P.J.


_________________________
BANKE, J.




                                              6
