(Super. Ct. No. 08F01253)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Frank James Williams, Jr., guilty of assault with a deadly weapon (a belt) and possession of a firearm by a convicted felon. The jury deadlocked and a mistrial was declared on a count of forcible oral copulation with use of a firearm. Defendant admitted a prior conviction of battery with serious bodily injury, alleged as both a serious felony (Pen. Code,*fn1 §§ 667, subd. (a), 1192.7, subd. (c)) and a strike (§§ 667, subds. (b)-(i), 1170.12). He was sentenced to state prison for 14 years 4 months. Defendant was awarded conduct credit pursuant to section 2933.1. The 2010 amendment to section 2933 does not entitle him to additional conduct credit because, inter alia, he has a prior conviction for a serious felony. (§ 2933, subd. (e)(3).)
On appeal, defendant contends: (1) his assault conviction is not supported by sufficient evidence that his striking the victim with a belt applied force likely to produce great bodily injury; (2) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of simple assault; and (3) this court should review the victim's sealed mental health records to determine whether the trial court abused its discretion when it denied defendant's motion for discovery of the records. We affirm.
Defendant met victim F. M. at work in 2006. Her husband died in November of that year. The next year, F. M. encountered defendant at a community college. They dated and then lived together for four to six months. Two months into the relationship, she found him smoking a glass pipe. When she asked what he was smoking, he got upset and threatened to hurt her. This scared F. M. Later that night, defendant held her down by her hair and forced her to orally copulate him. He slapped her face really hard after he failed to perform.
F. M. wanted to end the relationship but felt compelled to stay with defendant because he had threatened to kill her whole family. During the rest of their time together, he often forced her to perform oral sex and often hit her. He sometimes played pornographic videos during the forced sex. He promised to change his behavior but he never did.
On February 18, 2008, after spending the day together and returning home, defendant told F. M. to go to the bedroom and remove her clothes. He entered the room, closed the door, and tacked up blankets over the windows. Defendant, naked, lay on the bed, lit his pipe, and told F. M. to "do a good job" of oral sex. This was the first of six or seven demands for oral sex that night. F. M. complied with the demands because she did not want to die. Defendant pulled her hair, forced her down, threatened to hurt her using screwdrivers, and held a knife to her head and neck. He previously had threatened her with the same knife.
During the night, defendant voiced several threats because F. M. was not performing the way he wanted her to and he could not obtain an erection. F. M. was terrified. At times, he would put crack in her mouth or blow smoke in her face. He accused her of stealing his crack, and he threatened to cut her open to see what she had eaten for breakfast. He reached down her throat and up her vagina looking for crack. He struck her face and head, sometimes using a belt. He claimed he had been trained to kill people and knew how to hit people without leaving marks. He also pulled out a gun, pointed it at F. M., and threatened to use it. He previously had threatened her with the gun approximately 20 times.
The next morning there was a knock on the door. F. M. persuaded defendant to let her answer it. She opened the door and ran off screaming for help. A neighbor called 911.
Sacramento Police Officer Dustin Southward and other officers responded to the call. He spoke with F. M. before going into the house. She described screwdrivers and knives and said they would be located in the bedroom. Southward found two screwdrivers and two knives in the bedroom. F. M. confirmed to him that the found items were the ones used against her. Southward recovered a black belt from defendant's person while he was detained in a patrol car. A gun was recovered from the trunk of a car. Other officers spoke with F. M. and arrested defendant.
F. M. was taken to a medical center for a sexual assault examination. She told a nurse practitioner that the assaults were accomplished using a screwdriver and a knife. F. M. explained that defendant had hit her with a belt on her arms, legs, back, buttocks, hands, and feet. She had purplish bruises on her left mid-thigh and on the back of her left arm. She was tender on her lower back. She had an abrasion on her right buttock. F. M.'s blood tested positive for cocaine metabolite and for opiates.
The defense consisted of two stipulations. The first stipulation provided: "The People and the defense hereby stipulate that on March 14th, 2008, [F. M.] made the following statements to Deputy District Attorney Michael Kane and victim advocate Lisa Corral . . . . [¶] 1, [Defendant] tried to force me to drink his urine. [¶] 2, [Defendant] told me that he was God while he was beating me. [¶] 3, [Defendant] made me watch pornographic videotapes of women having sex between beatings of me. [¶] 4, [Defendant] would not let me wear underwear when we went out of the house to buy crack so that I could not get away. [¶] 5, quote, That morning I said '[defendant], I can't take this no more.' '[Defendant], you got to go to church. You got to get help because this is getting crazy.' In parenthesis, she never says she tried to break it off with him that Sunday before the incident. [¶] 6, [Defendant] said he was trained to hurt people, torture people without causing injuries. [Defendant] always hits with an open hand. [¶] 7, He hit me in the face so hard on the night of [the] incident that I fell against the wall. [¶] 8, [Defendant] held me against my will for days at a time. [¶] 9, He hit me with the belt. [¶] 10, I got up and started cleaning, and [defendant] took the belt and began hitting me. [¶] 11, [Defendant] told me to straighten up the house, but first I needed to lay down to get sleep, I said okay. I'll try to get sleep, and he brought out his belt and started hitting me with it. I told him I was lying down like he told me, and [defendant] said, but you're not closing your eyes, he then continued to hit me with the belt about six times, he wanted me to then drink his urine. [¶] 12, I have a telephone number of the real estate person who came to the door. [¶] 13, [Defendant] broke off a piece of the chair which was chrome and popped me across the ...