Filed 9/24/13 P. v. Shepard CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, Plaintiff and Respondent,

v.
VERNON D. SHEPARD, Defendant and Appellant.

________________ __________________ In re VERNON D. SHEPARD, on Habeas Corpus. B242135 (Super. Ct. No. BA378645)

B244346 (Super. Ct. No. BA378645)

APPEAL from a judgment of the Superi or 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, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, A ssistant Attorney General, Paul Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 An information, filed on December 30, 2010, charged Vernon D. Shepard
with one count of willful infliction of co rporal injury on a c ohabitant (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 alle ged that Shepard had a prior conviction for voluntary manslaughter that qualified as a stri ke under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two pr ior prison terms within the meaning of section 667.5, subdivision (b). After trial, the jury fo und Shepard guilty on both c ounts. In a bifurcated proceeding, Shepard admitted th at 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 convic tion for violation of Health and Safety Code section 11350 qualified him for senten cing under section 667.5, subdivision (b). The trial court sentenced Shepard to a state pr ison term of six years, consisting of the low term of two years for corporal injury, doubled pursuant to th e Three Strikes law, plus two years under section 667.5, subdiv ision (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 witnesse s; (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 inflic tion of corporal inju ry on a cohabitant; (3) the court erred by failing to give a unanimity instruction; and (4) CALCRIM No. 85 2, under which the court instructed the jury, is unconstitutional. We disagree with Shepard’s contentions. In a petition for a writ of habeas corpus, wh ich we consider in conjunction with the appeal, Shepard contends that he was subjec t to punishment for only one enhancement under section 667.5, subdivis ion (b), because abstracts of judgment demonstrate that he served only one prior prison te rm for the two alleged prior convictions. We agree with

1 Statutory references are to the Penal Code unless otherwise noted.3 Shepard that he should be pu nished for only one prior pris on 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 Pr ejudicial Violati on of His Constitutional Right to Confrontation Requiring Reversa l of the Judgment on Count 1 “The Sixth Amendment’s Confrontation Cl ause provides that, ‘[i]n all criminal prosecutions, the accused shall en joy the right . . . to be c onfronted with the witnesses against him.’” ( Crawford v. Washington (2004) 541 U.S. 36, 42 .) “[T]his provision bars
‘admission of testimonial statements of a w itness who did not appear at trial unless he was unavailable to testify, and the defenda nt had had a prior opportunity for crossexamination.’” ( Davis v. Washington (2006) 547 U.S. 813, 82 1.) “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 su bject 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.) “‘Co nfrontation clause violations are subject to federal harmless-error analysis . . . .’ [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational ju ry 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 ch arge of willful infliction of corporal injury on a cohabitant, the People intr oduced evidence under Evidence Code section 1109, subdivision (a)(1), of three pr ior uncharged reports of do mestic violence by Shepard4 against the victim, his cohabitant and the mother of his children. 2 One of the prior uncharged reports of domestic violence involv ed an incident on December 3, 2004. According to the eviden ce, on that day, at approximately 8:45 a.m., the police arrived at the home where Shepard liv ed with the victim in response to a battery, domestic violence radio call. One officer knocked on the door, a nd 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 si tuation,” the officer detained Shepard and placed him in handc uffs. 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 th e officer “that she was pushed. [Shepard] had used both hands and pushed her, struck her chest area a nd caused her to fall back onto a bedroom door.” The victim had asked Shepard to leave and he yelled at her a nd 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 obs erved a crack of approximately two feet on the bedroom
door. Shepard contends that admission of cer tain evidence with respect to the December 3, 2004 incident violated his ri ght to confr ontation because the victim did not testify at trial and some of her hearsa y statements to the officer were testimonial in nature. According to Sh epard, he “is not contesting whether [the victim’s] initial statements that ‘[h]e’s in []he re, he’s in []here,’ are testimoni al. He is only arguing that the statements that [the vic tim] made after [he] had been taken into custody and [the victim] was then asked questio ns and described the facts of the alleged assault were
testimonial for Confrontation Cl ause purposes.” Even if the statements the victim made to the officer after Shepard had been handcuffe d 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 th e evidence is not in admissible pursuant to [s]ection 352.”5 admission violated his right to confrontation, “it is clear be yond 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 w illful 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 arri ved at the home the
victim shared with Sh epard and her children, announced th eir presence at the front door and received no response. The officer repor ted that they “hear[d ] a struggle from the
inside of the house. . . . It sounded like th ere were running people, running inside, and then it sounded like someone was being slam med.” 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 th e 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 walk way. 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; a nd, apparently, . . . Shepard, was home. He had been drinking. He seemed to be up set 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 th at, 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, her6 statement to the officer at th e scene was consistent with what the officer and his partner heard and saw when they resp onded 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 th ough where there’s no you know contact whatsoever. Until this is . . . you know b ecause without ya’ll it’s a wrap. Period. Without ya’ll it’s a wrap.”
In addition to the evidence regarding the charged viol ation, other evidence of prior uncharged domestic violence, about which Shep ard 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 Septembe r 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 Sh epard 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 evid ence of prior uncharged dom estic violence about which Shepard does not complain, the trial court’s fa ilure to exclude any te stimonial statements by the victim on November 30, 2004 beyo nd a reasonable doubt did not prejudice Shepard.
2 . The Trial Court Was Not Required to Su a 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 que stion as to whether
all of the elements of the ch arged offense were present [cita tion], but not when there is
no evidence that the offe nse was less than that charged. [Citations.]’” ( People v.
Breverman (1998) 19 Cal.4th 142, 15 4.) Battery of a cohabitant is a lesser included
offense of willful infliction of co rporal injury on a cohabitant. ( People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Willful infliction of corporal injury on a cohabitant contains7 the additional element that the de fendant’s direct application of force to the victim caused injury to the victim. ( Ibid .) Shepard contends that the trial court was re quired to sua sponte in struct the jury on
the lesser included offense of battery of a cohabitant base d on the victim’s preliminary hearing testimony (admitted at trial) that Shepar d did not cause the inju ries to her lip and hand on November 30, 2010 and that, because of her intoxicated state, she hurt her hand by hitting and breaking th e window when she was angry a nd 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 cau sed by [the victim] herself when she either
stumbled or thrust her head into the win dow 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. Sh e denied telling police officers that Shepard had dragged her around the hou se by her hair and that he had pushed and slapped her. According to the testimony, therefore, Shepar d did not pull the vic tim’s hair, slap her face or otherwise touch her, as is necessary to his argument that th e trial court should
have instructed on the lesser in cluded offense of battery on a co habitant. In other words, if the jurors believed the testimony, they would have concluded that Shepard had committed no crime at all, not that he ha d committed the lesser included offense of battery on a cohabitant. No substantial ev idence thus supported an instruction on the
lesser included offense of batte ry on a cohabitant, and the tr ial court was not required to give one.
3. The Trial Court Did Not Err By Faili ng 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 c onstituting the charged offense. (Cal. Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th 297, 304.) As a result,
“‘when an accusato ry pleading charges a single crimin al act and the evidence shows8 more than one such unlawful act, either the prosecution mu st select the specified act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable do ubt 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 fa lls within the continuous cour se of conduct exception. This exception arises in two contexts. The fi rst is when the acts ar e so closely connected that they form part of one a nd the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contempl ates 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 re quired to give a unanimity instruction because “the prosecution offered two distinct and separate inci dents of alleged battery as
the basis for the inflictions of the two distinct injuries th at formed the basis of the
traumatic condition element of the . . . s ection 273.5, subdivision (a)[,] offense: [Shepard’s] slapping [the victim’s] face, whic h caused the traumatic in jury 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 secti on 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 h itting the victim and then atte mpting to push her through the window, that they occurred during one transaction. Thus , the continuous course of conduct exception applies, rendering a una nimity instruction unnecessary.9 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 in structed the jury re garding evidence of prior uncharged domestic violence, is uncon stitutional. According to Shepard, the instruction violates due pr ocess 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 se xual assault, and concedes that instruction is analytically identi cal 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 CAL CRIM No. 852, “The People presented evidence that the defendant committed domestic violence that was not charged in this case[.] [¶] Domestic violence means abuse co mmitted against an adult who is a spouse, cohabitant, or person with whom the de fendant has had a child. [¶] Abuse means intentionally or recklessly causing or atte mpting to cause bodily injury, or placing another person in reasonable fear of immine nt serious bodily injury to himself or herself or to someone else. [¶] The term cohab itant 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 unc harged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is prove d 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 vi olence, you may, but are not required to, conclude from that evidence that the defe ndant was disposed or inclined to commit domestic violence and, based on that decisi on, also conclude that the defendant was likely to commit and did commit corporal in jury resulting in a traumatic condition as alleged in Count 1. If you conclude th at the defendant co mmitted 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 prov e that the defendant is guilty of the charged crime. . . . The People must st ill prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.”10 Shepard nevertheless maintain s 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 specif ically noted that the instruction did not suggest the People could prove the charged cr ime 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 charge d offenses only if the proved circumstances could not be reconciled with any other ratio nal conclusion (CALJIC No. 2.02)—which is merely another way of restati ng 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, conc luded that one of the circumstantial evidence instructions buttressed its rejection of the constitutionality challenge to CALJIC No. 2.50.01. Although the Su preme Court did not mention CALJIC Nos. 2.00 and 2.01,
the circumstantial evidence inst ructions 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 eviden ce 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 conf licts with United States Supreme Court authority, including Boyd v. United States (1892) 142 U.S. 450, requiring use of a limiting instruction when th e jury considers eviden ce of prior criminal conduct or bad acts. CALCRIM No. 852, how ever, contains such a limiting principle by, as the trial court here instructed, telling juro rs, “Do not consider th is evidence for any other purpose.” Thus, the instruction limits use of evidence of uncharged prior domestic violence so as not to infringe on the principl es articulated in the United States Supreme Court authority cited by Shepard.11 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 analytic ally identical for constitutionality purposes, and the appella te 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, ar e ‘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 uncha rged 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 i nvestigate 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 Hea lth and Safety Code section 11350 and thus was subject to one, not two, prior prison term enhancements under section 667.5, subdivisio n (b). Shepard asks us to remand for resentencing without imposition of the second prior prison term enhancement. The People do not dispute th at the abstracts of judgme nt 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, whic h identified six aggravating and no mitigating factors.12 The People request that we leav e the sentence as is at six years, which is the length of sentence defendant argued for in the trial cour t, 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 Sh epard’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 prove n, 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 valid ity of the prior or underlying conviction’”].) Because the abstracts of judgment show th at 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 onl y one prior prison term enhancement under section 667.5, subdivision (b). After resent encing, if Shepard believes his sentence is improper, he of course may appeal.13 DISPOSITION On the appeal, the judgment as to Shep ard’s convictions is affirmed. On the original proceeding, the petition for a writ of ha beas corpus is granted, and the matter is remanded for resentencing.
NOT TO BE PUBLISHED

.

ROTHSCHILD, J. We concur:

MALLANO, P. J.

JOHNSON, J.