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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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, 

 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 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. 
2

 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. 
3

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 crossexamination.’” (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 
4

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.” 
5

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 
6

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 
7

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 
8

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. 
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 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.” 
10

 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. 
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 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. 
12

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. 
13

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.