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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

KENNETH BRUCE NYE,

Defendant and Appellant.

C071415

(Super. Ct. No. P11CRF0534)

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.