(Super. Ct. Nos. 08M05686, 08M05765, 08M06639 & 08F03996)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 James Kwabena Amoako was convicted of felony spousal abuse, threatening to commit a crime that would result in death or great bodily injury, assault with force likely to produce great bodily injury, unlawful sexual penetration, and violating protective orders. He was sentenced to state prison.
Defendant contends on appeal that (1) his motion for mistrial should have been granted after the victim, V.B., volunteered testimony that defendant previously "forced sex" on her; (2) the trial court should have instructed the jury on the lesser included offense of misdemeanor battery of a spouse; and (3) his sentence for threatening to commit a crime that would result in death or great bodily injury should have been stayed pursuant to Penal Code section 654.*fn1
We conclude (1) the trial court did not abuse its discretion in denying the mistrial motion, because the challenged comment was brief, the trial court struck the comment and admonished the jury to disregard it, and this is not an exceptional case where the admonition was inadequate; (2) the trial court was not required to instruct on the lesser included offense of misdemeanor battery of a spouse, because the evidence was such that a jury could not have reasonably doubted whether the elements of felony spousal abuse were proven; and (3) the trial court was not required to stay defendant's sentence for criminal threat, because substantial evidence supports the trial court's implied conclusion that defendant's objective in making the threat was separate from, and not incidental to, his objective in committing felony spousal abuse.
We will affirm the judgment.
The charges against defendant stem from an altercation he had with V.B. on May 20, 2008. At defendant's trial, V.B. testified in detail about this altercation. In addition, the jury heard evidence of other instances where defendant engaged in assaultive and/or threatening conduct toward women.
Ja'Nay Lott, defendant's former spouse, was the prosecution's first witness at trial. Defendant and Ja'Nay were married from 2005 until 2006. In February 2004, defendant argued with Ja'Nay about her desire to drive to work separately. Defendant attempted to choke Ja'Nay. She hit defendant with a coffee cup. Defendant then slapped, punched, kicked, and stomped on Ja'Nay in the hallway. Ja'Nay entered her car and defendant dragged her out, threw her down on the front lawn, and continued to stomp on and kick Ja'Nay. Ja'Nay sustained multiple bruises and a black eye.
Later, in September 2005, defendant quarreled with Ja'Nay and then showed up at her work. As Ja'Nay walked out of work for the day, defendant chased her on foot through the parking lot. Ja'Nay arrived safely at her car and locked the doors. Defendant told Ja'Nay that he was her husband and she would be with him "by choice or by force."
Defendant married V.B. in February 2007. They lived together for two years before they were married, and they separated a few weeks after they were married.
On May 20, 2008, V.B. came home at approximately 8:15 to 8:30 a.m. after having spent the night elsewhere. V.B. explained her decision to sleep away from home:
"[PROSECUTOR:] Had you stayed the night in your home that preceding evening the 19th?
"[PROSECUTOR:] And so you did not stay the night in your home; you stayed elsewhere?
"[PROSECUTOR:] And how long had you -- how many days had you stayed the night elsewhere preceding May 20th?
"[V.B.:] It was a couple [of] days. It was on and off for the last couple weeks before that.
"[PROSECUTOR:] It was not the first time you had stayed a night away from your home?
"[PROSECUTOR:] And why did you stay the night or nights away from your home?
"[V.B.:] [Defendant] had threatened me numerous of times, but the main reason is I had to go to work, and he would like take my vehicle and I would not have a ride to work. And like three nights before that he ...