(Super. Ct. No. 09F07382)
The opinion of the court was delivered by: Robie, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Cedric Stone guilty of felony vandalism and two counts of misdemeanor spousal battery. The trial court found true allegations that defendant had a prior robbery strike and had served three prior prison terms. The trial court struck two of the prison term findings and sentenced defendant to prison for 44 months. Defendant timely filed this appeal. He contends the trial court should have granted his Romero motion to strike the strike. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) We reject this contention and affirm.
The victim, defendant's wife, testified that on September 9, 2009, the couple lived with three children, and the victim was pregnant. The couple argued in the kitchen and defendant threw an empty plastic ketchup bottle at her and "hit my glasses off me." She denied telling an officer that defendant hit her skin. The victim told the 911 operator that defendant "threw a ketchup bottle at me and slapped my glasses off my face." A responding officer testified she reported defendant gave her an open-handed "slap across the face."
The victim testified that on September 27, 2009, she had been out of the hospital for about two days after a caesarian birth. She was mad at defendant because he had been out all night. He became angry when she told him her mother had thrown out a brush that he liked. Later, he cracked a large television screen with a car seat. The television had cost about $700 or $800. The victim was angry and chased defendant outside and said she would call the police. She ripped his shirt and he pushed her down, which scratched her knee. In a 911 call, she was crying and said he broke something in her house and pushed her down twice, she was "scratched up," and she felt like she had been cut under her arm. She testified her arm had not been injured and she told officers that she had ripped defendant's shirt during the fracas. However, when shown a photographic exhibit, she conceded it depicted a scratch on her arm. She had not mentioned ripping defendant's shirt in her written description of the incident, submitted in aid of a restraining order. A responding peace officer testified the victim had not mentioned ripping defendant's shirt.
The victim's mother testified that after defendant learned his brush had been thrown away, he threw a car seat into the television. She saw defendant push the victim down twice.
The parties stipulated that in 1998, defendant was convicted of misdemeanor domestic violence against R. W., the parent of his child.