APPEAL from a judgment of the Superior Court of San Diego County, Rodger W. Krauel, Judge. Affirmed.
The opinion of the court was delivered by: Benke, Acting P. J.
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A jury found Donald Clarence Schoonover guilty of assault with a deadly weapon by means of force likely to cause great bodily injury. Schoonover appeals, contending the trial court prejudicially abused its discretion by: (1) allowing a defense witness to be shackled; and (2) denying his motion to dismiss a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We reject Schoonover's contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Schoonover and Michael Holland lived in a residential complex in downtown San Diego. Their respective rooms were across from each other. On November 22, 2008, Holland, Phillip Waldchen and a friend named Sam were smoking marijuana in Sam's room. Holland and Waldchen also drank some alcohol. After Holland and Waldchen got into an argument, Sam kicked them out of his room.
The following day, in the early morning, Holland dropped a container of pistachio shells in his room. He used a towel to sweep the shells out of his room and into the hallway so they could be picked up by a janitor. Schoonover confronted Holland about the shells on the floor and the men exchanged profanities. After the verbal exchange, Schoonover went into his room and returned holding a ball-peen hammer with a large handle. Holland claimed he was unarmed and had not made any threats.
Schoonover swung the hammer at Holland, and ultimately hit him in his shoulder area and lower back. Ols Bardhi, the front desk clerk, heard Holland's screams and went to investigate. He looked into Holland's open door, saw Holland on the floor in a defensive position, and watched as Schoonover hit Holland with an unknown object. Schoonover then returned to his room, and Bardhi left to call the police.
San Diego Police Officers Carl Pira and Joseph Pardue responded, and Holland told them that Schoonover had hit him on the left side of his torso with a hammer. Schoonover allowed Officer Pira into his room. Officer Pira found a large ball-peen hammer with a metal handle that weighed between four and five pounds. Officer Pira showed the hammer to Holland, who identified it as the weapon that Schoonover had used.
After being advised of his Miranda rights, Schoonover agreed to talk to Officer Pira. (Miranda v. Arizona (1966) 384 U.S. 436.) Schoonover told Officer Pira that he kicked Holland once as Holland stepped toward him. Schoonover never told the officers that Holland had come at him with a knife or his fists. Although the officers found a plastic bag in the hallway that contained a small four-inch knife and pistachio shells, Officer Pira did not collect the knife because Schoonover never claimed that Holland had brandished it.
Schoonover testified in his own defense at trial. He admitted that in 1988 he had been convicted of unarmed bank robbery, a felony, and in 1997 he was convicted of another felony, attempted carjacking. Schoonover generally testified that he karate kicked Holland once in the ribs because Holland had swung at him with a knife.
Waldchen testified as a defense witness at trial. He admitted that he had two felony burglary convictions, and the jury knew that he was currently incarcerated. After his scuffle with Holland, he returned to a room he had in the same building. Waldchen later tried to apologize to Holland, but Holland picked up a three-foot-long desk drawer and started swinging it. Although Holland did not hit Waldchen with the drawer, Holland asked him if he was scared. Waldchen had previously heard that Holland was a violent person, but he had not seen Holland in a fight.
A jury found Schoonover guilty of assault with a deadly weapon by means of force likely to cause great bodily injury, and found true the allegations that he: (1) personally used a deadly weapon; (2) personally inflicted great bodily injury upon Holland; and (3) personally inflicted great bodily injury on Holland, which is a serious felony. Schoonover later admitted he had two prior serious felony convictions. After the trial court denied Schoonover's request to strike his prior convictions, it ...