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Filed 3/26/15 P. v. Mims 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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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 

(Sutter) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

DESHAWN LEE MIMS, 

 Defendant and Appellant. 

C075966 

(Super. Ct. No. CRF130947) 

 The primary argument raised by defendant DeShawn Lee Mims is that there was 

insufficient evidence to support his conviction for inflicting corporal injury on a 

cohabitant. Specifically, he argues that his two-week relationship with the victim was 

“too new and of too short a duration” to support a finding of cohabitation under Penal 

Code section 273.5.1 The Legislature, however, has not imposed a durational 

requirement on the cohabitation element of 273.5. And, taken as a whole, the record in 

this case contains substantial evidence to support the conclusion that defendant and the 

 

1 Undesignated statutory references are to the Penal Code. 
2 

victim were cohabitating. We reject defendant’s challenge to the sufficiency of the 

evidence. 

 Defendant also contends the trial court erred in imposing a concurrent one-year 

term on one of his prior prison term enhancements. We agree that the trial court erred in 

imposing a concurrent term on defendant’s prior prison term enhancement, and will 

remand the matter to the trial court for resentencing. In all other respects, we will affirm. 

BACKGROUND 

 On May 3, 2013, the Sutter County District Attorney filed a four-count 

information alleging that defendant committed the following offenses: (1) attempting to 

prevent or dissuade a victim, with an expressed or implied threat of force of violence, 

from making any report to a peace officer (§ 136.1, subd. (c)(1); count 1); (2) corporal 

injury to a cohabitant (§ 273.5, former subd. (a); count 2); (3) false imprisonment 

(§§ 236/237; count 3); and (4) misdemeanor unlawful entry into a residence (§ 602.5, 

subd. (b); count 4). The information also alleged that defendant had prior felony and 

prior serious felony convictions (§§ 667.5, subds. (a)-(b), (e)-(1); 1170.7, subd. (c)), and 

had served two prior prison terms. (§ 667.5, subd. (b).) The trial court dismissed count 4 

before trial. 

 A jury trial began on June 25, 2013. During the trial, the victim, Samantha M., 

testified that she met defendant approximately two weeks before the events leading to the 

charges against him. They immediately commenced a dating relationship, which 

included sexual relations. According to Samantha, defendant lived in the Yuba City 

home she shared with her mother and brother, “[t]he whole entire time we were dating.” 

 During their time together, Samantha helped defendant research colleges and the 

military on the computer. They requested information from various websites and gave 

Samantha’s home address in response to online queries. According to Samantha, “I’m 

not like his–I don’t know, like if it was his permanent address, but if you–[defendant] 

was signing up for colleges or other stuff I would help him on the computer with that, so 
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that all his college stuff, military, anything he signed up for is sent to my address.” They 

did not file a formal change of address form with the Department of Motor Vehicles 

(DMV). Nevertheless, Samantha testified that defendant received mail at her home. 

 Although Samantha testified that defendant lived with her, she acknowledged that 

he did not have a key to her house. Furthermore, Samantha testified that defendant was 

only allowed inside the house when she was there, and then only with her permission. 

 On April 13, 2013, Samantha and defendant visited defendant’s father and 

stepmother in Linda. Later that day, they went to a family barbeque at the home of 

defendant’s aunt in Yuba City. Within moments of their arrival, another guest, whose 

son Samantha had previously dated, verbally accosted Samantha and spat in her face. 

Upset, Samantha left the barbeque and started to walk home. Defendant followed her. 

Defendant followed Samantha back to her house, despite her repeated requests that 

he leave her alone. At one point, defendant approached Samantha from behind and put 

his arm around her neck. He then grabbed her around the middle and lifted her off the 

ground, making it difficult for her to breathe. Defendant held Samantha in this position 

for approximately three minutes, ignoring her pleas to let her go. Later, Samantha tried 

to run from defendant and hide, but defendant was able to find her. 

When they finally reached Samantha’s street, she broke away and ran for the front 

door. Defendant chased her. The door was locked, so Samantha rang the doorbell. 

Samantha’s 17-year old brother, Cody, answered. Samantha told Cody not to let 

defendant into the house, then closed and locked the metal security gate so he could not 

get in. 

Defendant told Samantha he would leave if she would give him his things. 

Samantha went upstairs and packed defendant’s belongings into a large black backpack. 

When she was done, after approximately “three to five minutes,” she went back 

downstairs and unlocked the security gate to hand the backpack to defendant. Defendant 

grabbed the backpack from Samantha, pulled open the security gate, and pushed his way 
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into the house. He then slammed Samantha against the wall, causing her to fall to the 

ground. As he did so, he said, “[you] got to be [fucked] up if [you] think [I’m] not 

coming inside.”2 

Samantha got up and tried to use the house phone to call 911. Defendant grabbed 

the phone from Samantha’s hands and ripped the cords from the wall. He pushed her 

against a computer desk and threatened to kill her if she called the police. He then 

pushed her into a recliner, knocking her to the ground. He then tried to hit her in the head 

with a thick glass cup, but Samantha managed to deflect the blow. Finally, Cody 

intervened and Samantha fled to a neighbor’s house to call the police. When police 

arrived, Samantha told the responding officer that defendant, “stays occasionally, but he 

doesn’t live [here].” 

During the trial, Cody testified that defendant stayed with them off and on for 

about two weeks. Cody characterized the relationship between defendant and Samantha 

as boyfriend and girlfriend. He did not know whether defendant had ever received mail 

at the house. 

A neighbor testified that he saw and heard parts of the altercation between 

Samantha and defendant. The neighbor also testified that he had previously seen 

defendant coming out of the house and taking out the garbage. 

On June 27, 2013, the jury found defendant guilty of count 1 (dissuading a victim) 

and count 2 (inflicting corporal injury on a cohabitant). The jury also found defendant 

guilty of count 3 (false imprisonment), but found that the false imprisonment was not 

effected by violence. Defendant waived a jury trial on the prior enhancement allegations, 

which the trial court found to be true. 

 

2 Samantha testified that defendant said, “[you] got to be F’d up if [you] think [I’m] not 

coming inside.” She later clarified that defendant said, “fucked” not “F’d.” 
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On January 29, 2014, the trial court sentenced defendant to a total of nine years in 

state prison for count 1, consisting of the lower term of two years, doubled to four years 

pursuant to section 667, subdivision (e)(1), plus an additional five years for the prior 

serious felony conviction pursuant to sections 667, subdivision (a) and 1192.7, 

subdivision (c). The trial court reduced count 2 to a misdemeanor and sentenced 

defendant to 180 days. The trial court sentenced defendant to 220 days for count 3, to be 

served concurrently. 

Turning to defendant’s prior prison term enhancements, the trial court stated, 

“With regard to the other enhancements . . . under 667.5(b) of one year, I’m not imposing 

that. [¶] With regard to the enhancement under 667.5(b) the additional one-year term is 

imposed, but that will run concurrent to the other terms imposed leaving the total 

aggregate sentence at nine years.” 

Defendant filed a timely notice of appeal. 

DISCUSSION 

I 

Sufficiency of the Evidence 

 Defendant contends there was insufficient evidence of cohabitation to support his 

conviction under section 273.5, former subdivision (a).3 We disagree. 

 “When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence–that is, evidence that is reasonable, 

credible, and of solid value–from which a reasonable trier of fact could find the defendant 

 

3 Section 273.5, former subdivision (a) provided, in relevant part, “Any person who 

willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, 

former cohabitant, or the mother or father of his or her child, corporal injury resulting in a 

traumatic condition is guilty of a felony . . . .” (Stats. 2012, ch. 867, § 16.) 
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guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the 

judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor revaluates a witness’s credibility. [Citation.]” (People v. 

Lindberg (2008) 45 Cal.4th 1, 27.) 

 “Cohabitation” within the meaning of section 273.5 has been defined by case law 

to describe unrelated adults “living together in a substantial relationship–one manifested, 

minimally, by permanence and sexual or amorous intimacy.” (People v. Holifield (1988) 

205 Cal.App.3d 993, 1000 (Holifield).) Cohabitation does not require proof of “a full 

quasi-marital relationship.” (Id. at p. 1002.) However, it requires “something more than 

a platonic, rooming-house arrangement.” (Id. at p. 999.) Factors that determine 

cohabitation include, without limitation, sexual relations between the parties, sharing of 

income or expenses, joint use or ownership of the property, the parties’ holding 

themselves out as marital partners, the continuity of the relationship, and the length of the 

relationship. (Id. at p. 1001.) 

 Defendant contends his relationship with Samantha was too short to be considered 

“substantial” or “permanent,” noting that the cases finding “cohabitation” involve greater 

periods of commitment than that reflected here. (See, e.g., People v. Taylor (2004) 

118 Cal.App.4th 11, 19 [cohabitation where couple dated for five months and lived 

together on and off in a car]; People v. Belton (2008) 168 Cal.App.4th 432, 435-436, 438 

[cohabitation where couple lived together in various locations, including the victim’s 

rented room, motels, other people’s homes, and a car, for some unspecified portion of the 

two-month relationship]; Holifield, supra, 205 Cal.App.3d at pp. 995-996, 1002 

[cohabitation where defendant stayed in victim’s motel room “half or more of the three 

months preceding the assault”].) 
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Although defendant’s two-week relationship with Samantha was short-lived, 

section 273.5 does not require a minimum period of cohabitation. The Legislature has 

specified no such period, and we find no indication that one was intended. None of the 

pertinent cases impose such a requirement, and defendant cites no authority suggesting 

that one should be judicially created. Accordingly, we reject defendant’s contention that 

the relationship was too short to be considered “substantial” or “permanent.” Instead, we 

view the length of cohabitation as one of several factors to be considered in determining 

whether two people share a substantial relationship. (Holifield, supra, 205 Cal.App.3d at 

p. 1001.) 

Defendant acknowledges that he had a sexual relationship with Samantha, but 

argues the prosecution failed to present any other evidence demonstrating the existence of 

a substantial relationship. We disagree. The record establishes that defendant and 

Samantha shared a sexually intimate–i.e., substantial–relationship and lived together for 

two weeks. During their time together, they discussed various plans for the future (such 

as college, and the military) and met one another’s families. Although their relationship 

was still relatively new, defendant kept a large backpack containing his belongings at 

Samantha’s house, contributed to household chores (by taking out the garbage) and 

received mail there. They were viewed by others as boyfriend and girlfriend. On this 

record, the jury could reasonably conclude that defendant and Samantha shared a 

substantial relationship of permanence and amorous intimacy, despite its limited duration. 

Defendant argues, without citation to the record, that he “had his own home.” We 

disregard all references to purported facts that are outside of the appellate record. 

(See Cal. Rules of Court, rule 8.204(e)(2)(C).)4 In any event, the fact that defendant may 

 

4 We note that the probation report indicates that defendant “Lives with: The victim and 

her mother.” Because the contents of the probation report were not presented to the jury, 
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have maintained a separate residence does not preclude a finding that he was cohabitating 

with Samantha. (People v. Moore (1996) 44 Cal.App.4th 1323, 1334.) 

Defendant emphasizes that he did not have keys to Samantha’s house, was only 

allowed inside with her permission, and only kept a few of his belongings there. None of 

these indicia of residence is required or dispositive. (Holifield, supra, 205 Cal.App.3d at 

pp. 996, 1002 [substantial evidence supported finding of cohabitation, despite the fact 

that the defendant did not have a key to defendant’s motel room and took his clothes and 

other belongings each time he left].) Furthermore, though Samantha testified that 

defendant was not allowed inside the house without her permission, the record suggests 

that defendant believed he was entitled to enter over her objections. 

Defendant also claims that Samantha was the one who provided her mailing 

address on online forms for colleges and the military, not defendant. He emphasizes that 

he never filed a change of address form with the DMV, and notes that Cody could not 

recall whether defendant ever received mail at Samantha’s house. Defendant also 

emphasizes that Samantha told police that he “stays occasionally, but he doesn’t live 

[here].” Though the jury could have relied on such evidence to find no cohabitation, it 

did not. Instead, the jury disregarded such evidence (as it was free to do) and credited, 

instead, the contrary evidence pointing to the existence of a substantial relationship 

between defendant and Samantha. As discussed, that evidence was sufficient to support 

defendant’s conviction under section 273.5. 

 

we do not consider them in evaluating the sufficiency of the evidence that was presented. 

(People v. Banuelos (2005) 130 Cal.App.4th 601, 607.) 
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II 

Unauthorized Concurrent Sentence

 The trial court sentenced defendant to a concurrent one-year term as an 

enhancement for one of defendant’s two prior prison terms. The parties agree, and we 

concur, that the trial court erred in imposing a concurrent term. 

 Under section 667.5, subdivision (b), the trial court is required to impose a 

consecutive one-year term for each prior prison term served for any felony. (People v. 

Savedra (1993) 15 Cal.App.4th 738, 746-747.) Once a prior prison term allegation is 

found true, the trial court must either impose a consecutive one-year enhancement term 

pursuant to section 667.5, subdivision (b) or exercise its discretion to strike the allegation 

pursuant to section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. 

Campbell (1999) 76 Cal.App.4th 305, 311; People v. Jones (1992) 8 Cal.App.4th 756, 

758.) If the trial court exercises its discretion to strike the allegation, it must provide a 

statement of reasons for doing so. (§ 1385, subd. (a); People v. Jordan (2003) 

108 Cal.App.4th 349, 368.) 

 Applying these authorities, we conclude the trial court erred in imposing a 

concurrent term for one of defendant’s two prior prison term enhancements. 

Additionally, we note that the trial court failed to provide the required statement of 

reasons for striking defendant’s other prior prison term enhancement. 

 We next consider the appropriate remedy. Defendant argues that the trial court 

“meant to impose and stay the prior,” and urges us to amend the abstract of judgment to 

indicate that the one-year enhancement has been stayed. However, the trial court did not 

have authority to stay the sentence on the prior prison term enhancement, assuming it 

intended to do so. (People v. Langston, supra, 33 Cal.4th at p. 1241 [“Once the prior 

prison term is found true within the meaning of section 667.5(b), the trial court may not 

stay the one-year enhancement, which is mandatory unless stricken”].) As discussed, the 

trial court was required to either impose and execute the one-year sentence, or strike the 
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enhancement. (People v. Fielder (2007) 154 Cal.App.4th 712, 714, fn. 3; see also 

People v. Campbell, supra, 76 Cal.App.4th at p. 311.) We therefore decline defendant’s 

invitation to amend the abstract of judgment. 

 The People argue that the matter should be remanded for resentencing. We agree. 

On remand, the trial court shall either strike the enhancement allegation pursuant to 

section 1385, subdivision (a), with stated reasons for doing so, or impose the 

enhancement terms consecutively as required by section 667, subdivision (b). Given that 

we are remanding to address the appropriate resolution of this enhancement, we also 

direct the trial court to provide a statement of reasons for striking the previously stricken 

enhancement allegation. 

DISPOSITION 

 The judgment of conviction is affirmed. The concurrent sentence imposed for the 

prior prison term enhancement is reversed, and the case remanded with directions to 

impose a consecutive sentence on the prior prison term enhancement, or strike it, with a 

statement of reasons. The trial court is also directed to provide a statement of reasons for 

striking the previously stricken enhancement allegation. Finally, the trial court is directed 

to prepare an amended abstract of judgment reflecting the corrected sentence, and 

forward a certified copy to the Department of Corrections and Rehabilitation. 

 RENNER , J. 

We concur: 

 MAURO , Acting P. J. 

 HOCH , J.