IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
September 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JUSHAWN STAPLETON, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF111866A)
The opinion of the court was delivered by: Robie , J.
P. v. Stapleton
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. None of Swinney's injuries required surgery; she was given pain killers and discharged.
Later, a friend of Swinney's went back to defendant's apartment and found a sawed-off shotgun in the bedroom. Next to the gun she found several shotgun shells; she contacted the police and they retrieved the gun and the ammunition.
Defendant was subsequently charged with two counts of assault by means likely to produce great bodily injury, two counts of making criminal threats, one count of false imprisonment, and one count of possessing a sawed-off shotgun. It was further alleged that defendant personally inflicted great bodily injury on Swinney and personally used a deadly weapon.
At the conclusion of a ten-day jury trial, the jury found defendant guilty on one count of aggravated assault, both counts of making criminal threats, and possession of a sawed-off shotgun. The jury found defendant not guilty on the charge of false imprisonment, but found him guilty on the lesser included offense of attempted false imprisonment. The jury also found defendant not guilty of the second aggravated assault charge, finding him guilty on the lesser included offense of misdemeanor assault. The jury found true the allegation that defendant personally used a deadly weapon, but did not find true the allegation that defendant personally caused Swinney great bodily injury.
There Was No Prosecutorial Misconduct
Defendant asserts a violation of his right to due process of law because, he contends, the prosecutor "dilut[ed]" the reasonable doubt standard of proof, lowering the burden of proof for the prosecution. We disagree.
Improper remarks by a prosecutor can "'so infect the trial with unfairness as to make the resulting conviction a denial of due process.' [Citation.]" (Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 157].) "'But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 858.)
The statement defendant contends constitutes prosecutorial misconduct was made during the prosecution's rebuttal argument: "[Defense counsel] had a chart. He brought you all the way to the bottom, to the top, suspicious, probable cause, all the way up to beyond a reasonable doubt. This isn't Mt. Everest we're talking about. It is a high standard and it should be, but it's not some mythical high level of proof that no one can ever reach otherwise no one you know would ever be convicted of anything.
"What beyond a reasonable doubt really means -- the judge will give you the legal definition -- an abiding conviction that the charge is true. That means you are confident of the truth of the charges, and what I tell juries is what it means, what it truly means is simply: Did he do it?"
Defendant objected to the prosecutor's argument. The trial court overruled the objection but instructed the jury as follows: "Ladies and gentlemen, if the attorneys' comments on the law conflict with my instructions, you must follow my instructions on the law. I will give you an instruction on reasonable doubt." The court later instructed the jury on the definition of reasonable doubt pursuant to CALCRIM No. 103.*fn1
We presume the jury followed the court's instruction. (People v. Osband (1996) 13 Cal.4th 622, 714.) The jury was properly instructed by the court on the definition of reasonable doubt and was further instructed to follow the court's definition of reasonable doubt if it conflicted with the prosecutor's. This is exactly the statement the prosecutor made to the jury.
Defendant nevertheless argues "it is inconceivable that the impact of the improper comments by the prosecutor might be harmless." To support his claim, defendant notes the timing of the prosecutor's remarks came during the rebuttal argument, when defendant had no opportunity to respond. Thus, he contends, "the prosecutor's remarks could not be removed from the jurors' minds." And where, as here, the defendant's guilt is "by no means open-and-shut," defendant argues there must have been prejudice. We are not persuaded.
The prosecutor's remark, which was perhaps poorly thought out, was neither deceptive nor reprehensible. In fact, the comment was made once in passing and only after telling the jury that the judge would provide them the legal definition of "reasonable doubt." Moreover, the prosecutor did give the jury the legal definition of reasonable doubt -- "an abiding conviction that the charge is true." (CALCRIM No. 103.) Thus, when we consider the prosecutor's remark in the context of the entire colloquy, we find no error.
Battery Is Not A Lesser Included
Offense Of Aggravated Assault
In count one, defendant was charged with assault by means likely to produce great bodily injury. Contrary to defendant's assertion, battery is not a lesser included offense of aggravated assault.
Two tests are applied "in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
As for the elements test, battery requires, as one of its elements, a completed touching. (Pen. Code, § 242; see People Mansfield (1988) 200 Cal.App.3d 82, 87-88.) Defendant was charged with aggravated assault, specifically, assault by means likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).) This offense can be committed without touching a person. "Where the assault is committed with a deadly weapon, or with force likely to produce great bodily injury, the aggravated assault is complete upon the attempted use of the force. If halted at this point, no battery has been committed." (People v. Yeats (1977) 66 Cal.App.3d 874, 878; see In re Robert G. (1982) 31 Cal.3d 437, 441; People v. Jones (1981) 119 Cal.App.3d 749, 754.)
As for the accusatory pleading test, the amended information alleged the aggravated assault in the terms of the statute, and did not allege a touching. Accordingly, the court correctly refused defendant's request to instruct the jury on the crime of battery.
The judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.