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People v. DeHart5/29/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION ON REHEARING
Defendant Harrison DeHart entered a negotiated plea of guilty pursuant to People v. West (1970) 3 Cal.3d 595 to elder abuse (Pen. Code, § 368, subd. (b)(1); undesignated section references are to this code) and admitted an enhancement for great bodily injury (§ 368, subd. (b)(2)) and violating probation in case No. 00M3031 [misdemeanor battery] in exchange for dismissal of the remaining counts [assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), false imprisonment (§ 368, subd. (f)), domestic violence (§ 273.5, subd. (a))] and allegation [infliction of great bodily injury (§ 12022.7)] in the present matter as well as case No. 01M6620 [public intoxication, obstruction of a public officer and disturbing the peace].
The trial court denied probation and sentenced defendant to state prison for the midterm of three years for the offense plus five years for the enhancement. In case No. 00M3031, the court terminated probation and dismissed the case.
Defendant appeals. He did not obtain a certificate of probable cause (§ 1237.5).
Defendant contends (1) he "was improperly prosecuted for elder abuse when a more specific statute governed his conduct" and (2) his sentence constitutes cruel and unusual punishment. We will affirm the judgment.
FACTS
On January 2, 2002, the 78-year-old defendant physically assaulted his 81-year-old girlfriend, Ruth R. They had lived together for 14 years. Defendant, who had been drinking vodka, entered the bathroom where the victim was sitting on a bench, put his hands over the front part of the victim's head, pulled her head forward and then slammed her head against the wall. She fell to the floor. Defendant got on top of her, pinned her to the floor, pulling her hair and choked her with her own clothing. She pleaded with defendant to let her go. When she started bleeding from one of her ears, he finally did. She got dressed and drove herself to the doctor who had her taken to the hospital where she was admitted for a skull fracture. She remained in the hospital for two days. The victim told a nurse that defendant had been drinking and got angry. The victim told an officer that defendant had previously abused her but that this was the worst.
When interviewed, defendant denied having anything to do with the victim's injuries but stated that she had tried to kick him. Defendant claimed he had caught the victim with someone else and that she may have been assaulted by whomever she had been with the previous night.
DISCUSSION
I.
Defendant first contends that he was improperly prosecuted for elder abuse when the more specific statute of domestic violence governed. He argues that his "liability can only fall under section 273.5 on the facts of this case."
Defendant was charged, inter alia, with both domestic violence (§ 273.5, subd. (a)) and elder abuse (§ 368, subd. (b)(1)). He entered a plea to a violation of section 368, subdivision (b)(1) and, in exchange for his plea, the domestic violence charge was dismissed. Defendant now claims that he was improperly prosecuted for elder abuse. He is attacking the validity of the plea. His failure to obtain a certificate of probable cause renders this issue non-cognizable on appeal. (§ 1237.5; Cal. Rules of Court, rule 31(d); Pe
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