People v. Stewart CA5

Filed 12/23/20 P. v. Stewart CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F079546 Plaintiff and Respondent, (Super. Ct. No. F17907332) v.

WHITNEY JEROME STEWART, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P.J., Franson, J. and Peña, J.

Defendant Whitney Jerome Stewart stands convicted of five felonies, including two counts of inflicting corporal injury to a spouse, arising from his attack upon his wife. He contends on appeal that the trial court erred in failing to sua sponte instruct the jury on misdemeanor spousal battery as a lesser included offense to inflicting corporal injury on a spouse. The People argue the lesser included instruction was not required by the evidence and, in any event, any error in failing to instruct was harmless. We affirm. PROCEDURAL SUMMARY On February 21, 2019, the Fresno County District Attorney filed a first amended information charging defendant with torture (Pen. Code, § 206;1 count 1), aggravated mayhem (§ 205; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and two counts of inflicting corporal injury to a spouse (§ 273.5, subd. (a); counts 4 & 5). As to counts 3, 4, and 5, it was further alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). On March 14, 2019, the jury found defendant guilty as charged on counts 1, 3, 4 and 5. On count 2, the jury found defendant not guilty of aggravated mayhem, but guilty of the lesser included offense of mayhem. The jury further found true the personal infliction of great bodily injury allegations on counts 3, 4 and 5. On June 2, 2019, the trial court sentenced defendant to life with the possibility of parole plus a determinate term of nine years as follows: on count 1, life with the possibility of parole; on count 3, four years (the aggravated term), plus a consecutive five-year enhancement for infliction of great bodily injury. The trial court also imposed, and stayed pursuant to section 654, terms on counts 2, 4 and 5 as follows: on count 2, eight years (the aggravated term); on count 4, four years (the aggravated term), plus a consecutive five-year enhancement for infliction of great bodily injury; and on count 5,