P. v. Fleming
After a jury trial defendant Albert Fleming was found guilty of assault by means of force likely to produce great bodily injury (Pen. Code, 245),[1]dissuading a crime victim from reporting ( 136.1, subd. (b)(1)), dissuading a crime victim from testifying ( 136.1, (a)(2)), and battery against a cohabitant ( 242, 243, subd. (e).) After a second phase of the trial, the jury found true enhancement allegations that defendant had four prior convictions of serious or violent felony offenses ( 667.5, subd. (c), 1192.7, subd. (c)). Sentenced to an aggregate term of 95 years to life in state prison, defendant appeals.
Defendant contends that the trial court erred in: (1) its instruction on the offense of dissuading a crime victim from reporting; (2) failing to instruct on battery as a lesser included offense to assault by means of force likely to produce great bodily injury; and (3) failing to instruct, as to the offense of dissuading a crime victim from testifying, that evidence he was a family member who interceded to protect the victim creates a presumption of absence of malice. He also contends that: (4) his trial counsel provided ineffective assistance in failing to request the lattermost instruction; (5) there is no substantial evidence to support the conviction of dissuading a crime victim from reporting; and (6) there is insufficient proof that one of his prior offenses was a serious felony. Finding no merit in these contentions, Court affirm the judgment.
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