P. v. Solano
A jury convicted defendant, Cresencio Solano, of robbery (count 1Pen. Code, 211);[1]spousal abuse (count 3 273.5); spousal battery, the lesser included offense of count 3 (count 3 243, subd. (e)(1); and battery (count 4 242). On appeal, defendant makes four contentions: (1) the courts instruction of the jury with CALCRIM No. 318 (prior inconsistent statements) impermissibly allowed the jury to consider the victims prior statements for the truth of the matters asserted without explicitly requiring that it find the statements were inconsistent with her testimony at trial; (2) defendants constitutional due process rights were violated when he was shackled during trial; (3) the cumulative effect of the two aforementioned alleged errors resulted in the denial of defendants due process rights; and (4) the conviction for the lesser included offense on count 3 must be stricken because the jury convicted defendant of the greater offense. The People concede the last issue. Court agree. Therefore, we shall direct the superior court to strike defendants conviction for spousal battery. In all other aspects the judgment is affirmed.
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