People v. High

1

THE PEOPLE, Plaintiff and Respondent, v. GREGORY DEAN HIGH, Defendant and Appellant.

F082478

California Court of Appeals, Fifth District

August 22, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tuolumne County Nos. CRF60095, CRF49073 Kevin M. Seibert, Judge.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carey, and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SMITH J.

INTRODUCTION

Gregory Dean High was charged with three counts of corporal injury to a spouse (Pen. Code,^[1] § 273.5, subd. (a), counts 1, 3 &4), each containing an allegation that High had suffered previous domestic violence convictions within the past seven years (§ 273.5, subd. (f)(2)) and two counts of false imprisonment by violence (§ 236, counts 2 &5). In counts 1, 2 and 3, it was further alleged that High personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The charges stem from three incidents occurring on the same day involving High's estranged wife.

A jury found High guilty of two counts of corporal injury to a spouse (§ 273.5, subd. (a), counts 1 &3) and two counts of felony false imprisonment (§ 236, counts 2 &5). The jury found the great bodily injury enhancements for counts 1 and 3 true. The trial court dismissed the great bodily injury enhancement as to count 2 pursuant to the People's motion. The trial court imposed an aggregate state prison term of 13 years four months.

On appeal, High raises the following claims: (1) the false imprisonment conviction related to the third incident at the Intake Grill (count 5) is not supported by sufficient evidence, (2) the court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted false imprisonment, (3) the trial court abused its discretion in admitting testimony regarding prior incidents of domestic violence, (4) the court committed Yurko^[2] error by failing to notify High of his rights and obtain a waiver before accepting High's admissions to prior convictions, (5) the matter should be remanded for resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), (6) his sentence violates section 654, and (7) he was entitled to an ability to pay hearing under Duenas.^[3] The People disagree with High's claims but concede that High's sentence violates section 654 and resentencing is required. As such the People contend we need not consider whether or not the sentence violates newly amended section 1170, subdivision (b), since the trial court will have the opportunity to apply the new terms at the resentencing hearing.

We conclude the trial court committed Yurko error and set aside the true findings as to the alleged prior domestic violence and prior strike convictions, vacate High's sentence, and remand for the trial court to hold further proceedings not inconsistent with this opinion. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND

I. Prosecution Evidence

T.H. was previously married to High and had a child with him. T.H. met High when she was eight years old, and they became a couple when she was 21 or 22 years old. In 2010, within six months of becoming a couple, High became controlling and his behavior escalated into cussing at T.H. and calling her names. In 2011, T.H. described their relationship as "rough," meaning there were a lot of fights and arguments. T.H. became pregnant at that time but suffered a miscarriage due to stress. T.H. became pregnant a second time and gave birth to her daughter, G. High and T.H. attempted to work things out in their relationship but continued to fight "extremely bad." They were together for approximately five years before getting married on October 11, 2015.

A. Evidence Code Section 1109 - Previous Incidents of Domestic Violence September 3, 2010 Incident Against R.D.

R.D. testified she was in a relationship with High back in 2006 that ended after having a child in October of 2011. R.D. recalled an incident on Chucker Circle in September of 2010 where the police arrived. At trial, R.D. denied the incident involved her and High.

Deputy David Vasquez testified that he responded to a disturbance on Chucker Circle on September 3, 2010, around 10:56 p.m. Vasquez noticed two to four individuals involved in a physical fight and saw High holding another individual in a headlock with his arm around his neck. The individual sounded like he was gasping for air. Vasquez told High to let go, but High did not initially comply. After High was detained, Vasquez spoke with R.D. who indicated the fight started because High, her current boyfriend, was jealous over her ex-boyfriend. Vasquez said R.D. told him High got upset because R.D. was texting her ex-boyfriend and talking about going to a party with him. High grabbed R.D. by the arms and threw her to the ground.^[4] Vasquez further testified that after reading High his Miranda rights, High admitted he grabbed R.D. by the arms and pushed her away from him, but denied throwing her to the ground.

March of 2015 Incident Against T.H.

T.H. testified she was with High at his mother's house for a party. T.H. did not hear High calling her name which made him extremely mad. High hit T.H., grabbed her by the neck, and threw her to the ground by kicking her feet out from under her. T.H. said she received scratches on her head, and her hair became so matted with blood she could not brush through it. High's cousin, who attempted to break up the fight, received an ankle fracture from the altercation with High. High's mother asked T.H. to lie and say she was injured in a wreck on a dirt bike. T.H. took photographs of the injuries to her face. She did not report the incident to the police because she was scared and because High's mother asked her to lie.

June 25, 2015 Incident Against T.H.

On June 25, 2015, High came to T.H.'s home around 5:00 a.m. and broke in through the garage door and the front door. T.H. explained that High took her phone because he was convinced she was sleeping with his cousin. High placed his hands on T.H.'s face, squeezed her cheeks, pushed her head down, and grabbed her. T.H. said she was scared and ran to the bathroom while High scrolled through her phone. T.H. locked her daughter G. and herself in the bathroom. High was trying to get into the bathroom, so T.H. put her back against the door and feet against the cupboard to keep him from entering. High cracked the bathroom door. T.H. called the police.

Sergeant Ken Grognet responded to the scene. Grognet noted damage to the doorframe of the entry door leading from the garage into the apartment and damage to an interior door leading into a bathroom. He found T.H. upset and crying. T.H. gave the police a statement and pictures of the damage to her doors. Later that day, Grognet spoke with High who confirmed he entered the house through the garage door and admitted he punched a hole in the bathroom door during the argument. Grognet noted there were several holes in the door. T.H. also told the police about the earlier incident that occurred in March of 2015 at High's mother's house. T.H. gave them photographs depicting her face and neck.

After these two incidents, T.H. said she moved to Arizona and then later returned to Mi-Wuk, California. She maintained a rocky relationship with High even though they lived separately. In October they married.

January 13, 2016 Incident Against T.H.

In the evening of January 13, 2016, while T.H. was sleeping, High appeared in her house. According to T.H., she and High had broken up, were no longer living together and he did not have permission to be inside. High did not have a key and entered through a sliding glass door in one of the rooms. The sliding glass door was locked but he could "just jimmy it." T.H. said she woke up to see High in her bedroom. High was visibly drunk and smelled of alcohol. They got into a verbal fight and T.H. was able to get High to leave, but he came back multiple times during the night through the same sliding glass door. Each time he came back, T.H. would try to get him to leave and they would argue. At some point, High became physically violent and pushed T.H. and choked her. T.H. pushed him away, ran to the kitchen, and called 911. The dispatcher stayed on the line with T.H. until High left. Law enforcement arrived and took T.H.'s statement and photographed the marks around her neck and knot to her forehead. Detective Skylar Waid observed bruising around T.H.'s neck and throat. There were lines on her neck like fingers and she had bruising above her left elbow. Her right wrist was also red. Her right hand was swollen and, two days later, she developed swelling in her wrist and elbow.

August of 2018 Incident Against T.H.

In August of 2018, T.H. and High were living together in a house on Crystal Falls. They had a party at the house and High's cousin was there. They were all drinking and, at some point, T.H. began to feel unwell. She went downstairs to take a bath. When High could not find T.H. or his cousin, he accused T.H. of sleeping with his cousin. While T.H. was still in the bathtub, High confronted her, started yelling at her, and hit her in the face. T.H.'s nose started bleeding and they continued fighting as they moved out of the bathroom. High ended up on top of T.H., choking her. T.H went in and out of consciousness finally telling High to "just kill me and get it over with." High stopped choking her, started crying and told T.H. how sorry he was. T.H. did not report this incident to police because High was...