P. v. Brashear
A jury found appellant guilty of battery by a confined person upon a non-confined person (Pen. Code, 4501.5).[1] The victim was appellants court-appointed attorney,
Mr. Robert Stover, who was representing appellant at a trial on a misdemeanor charge. Appellant struck Mr. Stover and yelled conflict of interest as Stover was making an argument to the court in support of a defense motion to exclude evidence in regards to prior acts of appellant. The jury also found true allegations that appellant had prior convictions for violations of PC 187(a) (murder) and PC 245(a)(1). The section 4501.5 conviction was appellants third strike, and he was sentenced to a term of 25 years to life.
Appellant raises five contentions of error. They are: (1) the trial court erred in failing to instruct the jury with a necessity defense instruction not requested by the defense at trial; (2) the trial court erred in permitting the prosecution to impeach appellants trial testimony with evidence of appellants prior convictions for murder and assault with a deadly weapon, and refused a bifurcated trial on the prior conviction allegations; (3) the cumulative effect of purported errors (1) and (2) above deprived appellant of a fair trial; (4) the trial court deprived appellant of his right to a jury trial on the prior conviction allegations by instructing the jury with CALCRIM No. 3100; and (5) the court erred in sentencing appellant as a third striker because (a) appellants jury was not permitted to decide whether his section 245, subdivision (a)(1) prior conviction qualified as a strike under the three strikes law, (b) the court made no express finding that the section 245, subdivision (a)(1) prior conviction was a strike, and (c) the evidence was insufficient to establish that the section 245, subdivision (a)(1) prior conviction was a strike.. As we shall explain, Court find all of these contentions to be without merit. Court affirm the judgment.
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