(Super. Ct. No. SF111866A)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jushawn Stapleton guilty of assault with force likely to create great bodily injury, two counts of making criminal threats, attempted false imprisonment by violence, misdemeanor assault, and possession of a deadly weapon. The jury also found true the allegation that defendant personally used a deadly weapon when committing one count of making criminal threats. The trial court sentenced defendant to an aggregate term of four years and eight months in state prison.
On appeal, defendant contends the prosecutor committed misconduct by reducing the burden of proof during closing argument. Defendant also contends the trial court erred in refusing to instruct the jury on misdemeanor battery as a lesser included offense of assault by means likely to produce great bodily injury. Finding neither of defendant's claims have merit, we affirm.
Around 9:00 a.m. on May 19, 2009, defendant appeared at his former girlfriend, Latoya Swinney's, apartment. Defendant let himself into the apartment, went into the bathroom, then found Swinney in her bedroom where he started arguing with her. Defendant shoved Swinney against the bedroom wall and punched her three or four times. Defendant threw Swinney on the ground and began to choke her with his bare hands. Defendant told Swinney, "'No one is going to hear you. They don't know I'm here. Don't nobody know I'm here so they're not going to hear you.'"
Defendant shut the blinds and the patio door. Then, defendant got on top of Swinney, put his knees on her shoulders, and pummeled her face. While he was beating Swinney, defendant told her to, "Die slow." He got off of Swinney, choked her, and kicked her. As he kicked her, defendant told Swinney, "'You can't have no more babies, and if you're pregnant again, you're not going to have them, they're gonna die.'" Swinney repeatedly told defendant she wanted to leave, but he ignored her pleas.
The beating continued in the living room, the bedroom, and the bathroom. In the bathroom, defendant told Swinney, "'Look at your face. Ain't nobody going to want you after this, look at it.'" At some point, defendant left Swinney and came back with a knife from the kitchen. Defendant held the knife to Swinney's neck and said, "You're gonna die. [¶] I'm going to kill you." Defendant dragged Swinney back into the bedroom where he put the knife to her neck and said, "I don't want to do this. Be quiet. You're gonna go fast."
Defendant dragged Swinney back to the living room and told her he loved her. Then, defendant went to the bedroom by himself and Swinney ran out the front door. As Swinney reached the bottom of the steps outside of her apartment, defendant grabbed her and tried to pull her back inside. Swinney screamed and defendant released his grip; Swinney "ran to where at least some people would be."
Two women saw Swinney run through the apartment parking lot. Swinney was dragging her feet and saying, "'help me, help me.'" The woman knew Swinney and saw that her face was injured. Swinney collapsed and the women caught her; she told them "[defendant] beat me," and had been beating her for hours. The women stayed with Swinney until an ambulance arrived.
Officers spoke to Swinney at the hospital. Swinney was scared and crying. She had bruises on her arm and face and blood around her mouth. She had "obvious trauma to the left side of her face." Her face was so swollen, she looked asymmetrical. A CT scan revealed that Swinney had a fracture to the zygomatic arch on the left side of her face. ...