(Sonoma County Super. Ct. No. FCR550172)
The opinion of the court was delivered by: Jenkins, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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A jury convicted Jennifer Jane Robinson of the felony offense of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). After a bench trial, the court found Robinson had suffered two prior strike convictions under the Three Strikes Law (Pen. Code, § 1170.12), and two felony convictions for which she had served separate prior prison terms (Pen. Code, § 667.5, subd. (b)). The court granted Robinson's Romero motion to strike the two prior strike convictions for the purpose of sentencing. Robinson was sentenced to a five-year probationary term. On appeal, Robinson contends the trial court committed reversible error in instructing the jury. We affirm. *fn1
FACTUAL AND PROCEDURAL BACKGROUND
Robinson was charged with one felony count of willful infliction of corporal injury on a co-habitant Gary Morell, committed on November 22, 2008. The following evidence was presented at a jury trial held in March of 2009:
Morell met Robinson in March 2008 and they began a romantic relationship. The day before the trial, Morell asked Robinson to marry him. At the trial, Morell testified under subpoena concerning two altercations he had with Robinson, one in September 2008, and the November 2008, incident.
In September 2008, Morell rented a motel room in Napa for a romantic interlude with Robinson. During the evening, an intoxicated Robinson appeared to be irritated by a telephone call, her demeanor changed, and she became aggressive towards Morell. She twisted Morell's eyeglasses and physically attacked him by hitting him a few times with closed fists. Morell did not recall where the punches landed "because [he] had multiple injuries." Robinson was "staggering quite a bit around the [room], and throwing things around." Morell was ultimately able to get out of the room, and a hotel attendant called the police. The jury was shown photographs taken after the incident that depicted Morell's injuries: he sustained a black eye inflicted by Robinson, red marks along his cheek area where he was struck by some hairspray cans, and injuries on his back and shoulders. Morell told the police he did not want to pursue a criminal complaint against Robinson at that time.
In November 2008, Morell and Robinson decided to live together, and Robinson moved into Morell's apartment. One week later, on the evening of November 22, Morell was watching television while Robinson was doing crafts at a table in the living room. Both parties were drinking that evening: Robinson drank one full liter bottle and an additional eight ounce glass of beer, while Morell had two eight ounce glasses of beer.
During the evening Morell approached Robinson on several occasions. On one occasion as Morell approached Robinson, she stood up, kind of staggered, and her voice was slurred. Morell hugged and kissed her. But, he noticed a change in her demeanor, and he backed off. Without saying anything, Robinson slapped Morell on the side of his head with her open hand. Robinson's slap hurt, but it did not leave a mark or cause injury.
After Robinson slapped him, Morell could not recall if he pushed or forced Robinson to the floor (as he testified at the preliminary examination) or if she just staggered and landed on her back on the carpeted floor (as he testified at trial). Once Robinson was on the carpet, Morell got on top of her and restrained her arms because he was concerned about a recurrence of their previous altercation in Napa. While Morell was on top of Robinson, he was either sitting on her or straddling her. Despite Morell's restraint, Robinson was able to use her hips to move towards the front door. According to Morell, Robinson (five feet tall, weighing 110 pounds), was very strong, and she could just about lift Morell (five feet seven inches tall, weighing 145 pounds). While being restrained by Morell, Robinson moaned in a very high voice, "Let go. Get off me," and screamed in a loud voice to be left alone. Morell replied that there was no way he was going to get up; he told her, "This ends right now;" and "This has got to stop." Morell did not release Robinson's arms until the police arrived at the apartment about 30 to 45 minutes later.
When asked how he had sustained his injuries, Morell replied that while he and Robinson were struggling on the carpet, "[t]here w[ere] times . . . that her arms were free and she was able to take her hands and literally grab my chest where I had all the bruises and actually, like, pinch it, and that was about all she could do. She couldn't have done anything else." Morell suffered abrasions but he did not feel them, and he did not recall how he sustained facial injuries that were depicted in photographs shown to ...