P. v. Turner
A jury convicted appellant Sean Thomas Turner of infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a), count 1)[1] and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2). Appellant admitted that he suffered a prior conviction for spousal abuse within the meaning of section 243, subdivision (e)(1). The trial court imposed concurrent mid-term sentences of three years in state prison on counts 1 and 2. The trial court suspended execution of sentence and placed appellant on formal probation for four years on terms and conditions of probation, including that he serve 222 days in county jail. Appellant was awarded 222 days of presentence credit consisting of 148 days of actual custody credit and 74 days of conduct credit.
Appellant contends the trial court erred (1) by failing to instruct the jury sua sponte on misdemeanor spousal battery (§ 243, subd. (e)) as a lesser included offense in count 1; (2) by failing to instruct the jury sua sponte on misdemeanor assault (§ 240) as a lesser included offense in count 2; (3) by instructing the jury with CALCRIM No. 852, which allowed the jury to consider evidence of uncharged acts of domestic violence; and (4) in calculating appellant’s presentence credit.
We order the abstract of judgment modified to reflect 296 days of presentence custody credit. In all other respects, the judgment is affirmed.
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