Filed 11/8/13 P. v. Nye CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----



THE PEOPLE,                                                                                  C071415

                   Plaintiff and Respondent,                                   (Super. Ct. No. P11CRF0534)

         v.

KENNETH BRUCE NYE,

                   Defendant and Appellant.




         Defendant Kenneth Bruce Nye repeatedly beat and verbally threatened his wife
(the victim) during their marriage of approximately seven years. In this case, a jury
found him guilty of making criminal threats and inflicting corporal injury on the victim
having previously been convicted of corporal injury on her within seven years.
         The evidence supporting the current crimes was as follows: On October 21, 2011,
defendant (who was living apart from the victim) came over to her house to return some
bike tires, but the victim told him to leave. Instead of leaving, defendant went inside a
garage on the property. The victim told him to get off the property. Defendant hit the
victim on her head with something that felt like a metal pipe, causing her nose to bleed,



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and then told her, “ ‘I’m going to kill you, bitch.’ ” The victim called 911, and police
found defendant hiding in his car. Defendant denied hitting the victim and said he was
being sarcastic when he told her he was going to kill her. Approximately four years
before these crimes, defendant pled to inflicting corporal injury on the victim.
       At trial, defendant’s sister testified that the victim had falsely accused the sister of
“attacking [the victim], hitting her, [and] vandalizing her home.” Defendant’s sister
acknowledged that charges were filed against her, but she claimed it was a “false police
report.”
       On appeal, defendant raises two evidentiary issues and one sentencing issue.
Finding merit in only the sentencing issue, we modify the judgment.
                                       DISCUSSION
                                               I
    There Was Sufficient Evidence Of Defendant’s Prior Corporal Injury Conviction
       Defendant contends there was insufficient evidence to support the jury’s finding
that he had a prior conviction for inflicting corporal injury on a spouse within seven years
of the current crimes.
       The proof of the prior conviction consisted of the following: toward the very end
of the People’s case-in-chief and in front of the jury, the prosecutor asked the court to
take judicial notice of the following: “[A] plea that [defendant] entered to a violation of
Penal Code Section 273.5, corporal injury to a spouse, being [the victim]. He entered
that plea on April 23rd of 2007.” Defense counsel did not object, and the court stated it
would take the requested judicial notice. The People then rested and the court told the
jury, “So, ladies and gentlemen, you basically heard all of the testimony you’re going to
hear from the People in this case, at least up to this point. If there’s rebuttal testimony,
that’s something else. [¶] Now we’ll start with the Defense case.” In opening statement
and in closing argument, defense counsel admitted to the jury that defendant had pled to
that prior conviction.

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       Defendant’s insufficiency of the evidence argument is based on the fact that the
only evidence of the prior conviction was the judicial notice of the prior conviction.
According to defendant, “a judicially noticed fact does not constitute evidence, but rather
is a recognition of the existence of a fact as a matter of law.” He is wrong. “ ‘Judicial
notice is the recognition and acceptance by the court, for use by the trier of fact or by the
court, of the existence of a matter of law or fact that is relevant to an issue in the action
without requiring formal proof of the matter.’ [Citation.] The court may in its discretion
take judicial notice of any court record in the United States. [Citation.] This includes
any orders, findings of facts and conclusions of law, and judgments within court records.”
(Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882, italics added.) Defendant’s plea to corporal injury to a spouse falls
within these parameters.
                                              II
          Defendant Forfeited His Argument Regarding Questioning His Sister
     About Whether Charges Had Been Filed Against Her For Battering The Victim
       Defendant contends the trial court abused its discretion when it allowed the People
to question his sister about whether criminal charges had been filed against her because
the court prohibited the defense from eliciting evidence that those same charges were
dismissed. We find the issue forfeited, despite defendant’s argument that any objection
would have been futile.
       It was actually defense counsel who moved to admit the evidence that defendant’s
sister was charged with battering the victim. Specifically, defense counsel filed an in
limine motion to admit the following facts: a misdemeanor complaint was filed against
defendant’s sister and the charges were dismissed in the “i[nterest] of j[ustice].” At the
hearing on whether to admit this evidence, the court noted that a dismissal in the interest
of justice did not mean it was a false charge, noting that “[c]ases get dismissed all the
time for a myriad of reasons.” As the matter continued to be discussed, the court

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reiterated that there was no evidence as to why the case was dismissed, so the court was
not going to allow in evidence of the dismissal. Even as the court continued making its
ruling clear on the inadmissibility of the dismissal evidence, defense counsel still urged
the admission of the fact that defendant’s sister was charged. Specifically, defense
counsel stated, “So we are allowed to get into the fact that she was charged, correct?”
The court agreed and also agreed to allow testimony from defendant’s sister herself that
“[s]he can say they’re false.” At no point did defense counsel argue that he wanted
evidence of the charges being filed excluded if he was not allowed to solicit evidence that
the charges were dismissed. During direct examination of defendant’s sister, defense
counsel asked whether the victim had ever accused her of doing something she had not
done. Defendant’s sister testified the victim had accused her of “attacking her, hitting
her, [and] vandalizing her home.” During cross-examination, the People asked
defendant’s sister if charges were filed against defendant’s sister. Defendant’s sister
responded, “Yes, she did bring a false police report.”
       Defendant now claims that any objection to the evidence that charges were filed
against defendant’s sister would have been futile. (See People v. Dykes (2009) 46
Cal.4th 731, 756 [“trial counsel’s failure to object to claimed evidentiary error on the
same ground asserted on appeal results in a forfeiture of the issue on appeal”]; People v.
Wilson (2008) 44 Cal.4th 758, 793 “[a] litigant need not object . . . if doing so would be
futile”].) Not so. Since it was defense counsel who requested admission of the evidence
of the charges being filed, we cannot say the court would have refused to allow defense
counsel to withdraw that request once it ruled that the evidence of the dismissal could not
come in. Importantly, the record reflects that defense counsel did not want to withdraw
his request. He wanted the evidence of dismissal admitted, but failing that, the record




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demonstrates he was satisfied at the very least to have defendant’s sister testify that those
charges were false, as counsel was still pressing his request to admit the charges into
evidence after the court made clear it was not allowing in evidence of the dismissal.
Thus, defendant’s claim that the court should not have admitted evidence of the charges
against defendant’s sister is forfeited because defense counsel failed to request its
exclusion in the trial court.
                                             III
 The Court Improperly Ordered Defendant To Pay A Criminal Needs Assessment Under
   Government Code Section 68085.4, But No Amendment To The Abstract Is Needed
       Defendant contends and the People concede the trial court improperly ordered
defendant to pay a criminal needs assessment under Government Code section 68085.4.
That code section deals with how certain fees that are collected should be allocated.
(Gov. Code, § 68085.4, subd. (a).) While the court orally pronounced it was imposing a
total of $60 in critical needs assessment fees pursuant to that code section, the abstract of
judgment notes that a “criminal conviction assessment” of $60 was imposed pursuant to
Government Code section 70373. That code section imposes a mandatory assessment of
“thirty dollars ($30) for each . . . felony” “[t]o ensure and maintain adequate funding for
court facilities.” (Gov. Code, § 70373, subd. (a).) While it is generally true an oral
pronouncement of judgment controls (People v. Mesa (1975) 14 Cal.3d 466, 471), where
an assessment is mandatory, its “omission may be corrected for the first time on appeal”
(People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530). However, no amendment to
the abstract of judgment is necessary, because the abstract of judgment notes the correct
code section for the $60 assessment.
                                       DISPOSITION
       The judgment is modified to reflect that the $60 assessment is imposed pursuant to
Government Code section 70373. (No amendment to the abstract of judgment is



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necessary, because the abstract of judgment notes this already.) As modified, the
judgment is affirmed.



                                         ROBIE        , Acting P. J.



We concur:



      BUTZ         , J.



      HOCH          , J.




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