(Super. Ct. No. 09F08204)
The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was convicted by a jury of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and the court found he had previously been convicted of a serious felony within the meaning of the three strikes law (id., §§ 667, subds. (b)-(i), and 1170.12). Sentenced to an aggregate state prison term of 16 years, defendant appeals, contending the prosecutor committed misconduct during her questioning of one witness and her rebuttal argument to the jury. We disagree and affirm the judgment.
At approximately 7:00 p.m. on the evening of November 5, 2009, K.N. was working as a security guard at the Madison Square Shopping Center, near the corner of Madison and Manzanita in Carmichael. While on patrol in the parking lot, he spotted a white male trying to steal a Home Depot shopping cart and asked him to put it back. The man refused to do so but eventually allowed K.N. to take the cart.
Soon thereafter, K.N. observed the white male with a black male, later identified as defendant, outside Garcia's Restaurant in the same shopping center. They were talking and drinking from open containers of alcoholic beverages. A second white male on a mountain bike joined them a little later. K.N. told the men they are not permitted to drink alcoholic beverages in the shopping center lot and that they had to leave. The men got "pissed off" and the first white male said: "You're a [sic] just a rent-a-cop. Get out of here." Both the first white male and defendant threatened K.N. K.N. told them they had five minutes to clear out and resumed his patrol of the parking lot.
Approximately five minutes later, K.N. returned and saw that the men were walking away from Garcia's. However, instead of leaving the lot altogether, they went to a nearby Carl's Junior Restaurant. K.N. approached them at Carl's Junior and saw that they were still drinking. He again told them they could not have open containers of alcoholic beverages in the area. The men responded, "Oh, you're not going to stop us" and "We are going to continue drinking here and fuck you." Defendant continued to drink and said he was going to "kick [K.N.'s] ass or something like that." The first white male threw an open soda can that hit K.N. and spilled soda on him.
The three men began walking toward K.N., who backed away. The first white male threw an open can of beer at K.N., hitting and spilling beer on him. The men circled around K.N., who pulled out a can of pepper spray for protection. The second white male got on his bike and rode around K.N. saying he was going to "fuck [him] up."
The first white male spit on K.N.'s face and jacket, and K.N. sprayed him with pepper spray. At that point, defendant, who had been behind the first white male, attacked K.N., hitting him repeatedly on the right shoulder. K.N. sprayed defendant twice, for a total of six seconds. However, this seemed to have no effect except to enrage defendant. The last time defendant hit him in the shoulder, K.N. realized he had been stabbed. He saw blood on his shoulder and a knife with a three- to four-inch blade in defendant's hand. K.N. backed away and the three men fled the area.
At the time of the attack, defendant was separated from his wife, R.W., and was homeless. Defendant had informed R.W. he was staying behind a liquor store near the intersection of Madison and Manzanita. R.W. had obtained a restraining order against defendant.
At approximately 9:00 p.m. that evening, R.W. was working at a restaurant at 5100 Auburn Boulevard, less than a mile from where the attack on K.N. occurred. R.W. was in the back of the restaurant when she observed defendant about 100 yards away. Defendant was beckoning her to come over to him but she refused. Defendant then approached her at the restaurant. They spoke for a while and defendant appeared agitated and nervous. He tried to hug R.W. but she pushed him away. A little later, R.W. touched her ...