(Super. Ct. No. CRF090002002)
The opinion of the court was delivered by: Robie, Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Sharief Osman Shendi guilty of battery causing serious bodily injury and found true an allegation that he had been convicted of a serious felony as well as allegations that he had previously served three separate prison terms. The court sentenced defendant to an aggregate term of 12 years in prison.
On appeal, defendant argues he was denied a fair trial because of prosecutorial misconduct in closing argument and that his attorney was ineffective for failing to object to the misconduct. Defendant also claims the trial court abused its discretion when it denied his motion for a new trial based on the alleged misconduct. Lastly, defendant argues that at least two of the prior prison term enhancements should have been stricken instead of stayed.
We reject defendant's assertion of prosecutorial misconduct and related claims but agree that two of the prior prison term enhancement findings must be stricken. Accordingly, we will modify the judgment to correct this sentencing error and affirm the judgment as modified.
From February to August 2009, defendant and Aaron Galindo were roommates, living in Sutter County with defendant's stepmother, Mary, and defendant's stepbrother, Greg. Defendant and Galindo shared a room in the house; defendant would use the room when he stayed there a couple days per week, and Galindo would use it the rest of the time. On days when defendant was home, Galindo slept on the couch in the living room.
On the afternoon of August 12, 2009, Galindo was watching television in the living room with his girlfriend, Chrystal Allen. Defendant was the only other person in the house. Galindo asked defendant if he and Allen could use the shared bedroom for "sexual purposes."
After Galindo and Allen left the room, defendant asked Galindo which bed he had used. Galindo responded they used the bed he and defendant both used. Galindo and Allen returned to the living room to watch television, and defendant told them they needed to leave until either Greg or Mary returned. Galindo declined, said he had a right to be there because he paid rent, and suggested he should call Mary to "see what she says." Galindo then used his cell phone to call Mary. When Galindo began speaking to her, defendant got "right in [Galindo's] face." When Galindo asked defendant to step back, defendant started hitting him. Defendant struck Galindo multiple times in the face and head with his fist, and Galindo curled into the fetal position to try to defend himself. Galindo testified defendant struck him continuously for five minutes and that he never struck back. Galindo asked defendant to stop hitting him and offered to leave, but defendant continued the attack.
Allen came out of the bathroom, saw the attack, and yelled at defendant to stop. Defendant told Allen if she did not "shut [her] mouth," he would continue hitting Galindo. Defendant hit Galindo a couple more times, then stopped and asked him to leave again. Galindo was bleeding from the nose and mouth, received a cut on the back of his head, and described a throbbing pain on the side of his face. Galindo asked defendant to bring him his things and defendant did so. Before Galindo and Allen left, Allen called Mary again; defendant became aggravated and threatened to hit Allen if they did not leave. Allen then drove Galindo to his parents' house, where his mother called the police. The police arrived, interviewed Galindo and Allen, and photographed Galindo's injuries. Galindo was treated by ambulance personnel, then transported to the hospital.
Dr. Mark Agness was the emergency room physician who treated Galindo for his injuries. Dr. Agness diagnosed Galindo with facial trauma, a blow-out fracture of the left eye socket, and a comminuted nasal fracture. Galindo was at the hospital for about five hours and was in pain for about a week and one-half after the attack. Galindo also ...