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People v. Banks1/24/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Edward Eugene Banks appeals from the judgment entered upon his conviction by jury of false imprisonment by violence or menace (Pen. Code, § 236) with findings that he had sustained a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and four prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to 10 years in prison, comprised of the upper term of three years, doubled under the three strikes law, with four 1-year prison term enhancements.
He contends (1) that the evidence was insufficient to support his conviction for false imprisonment by violence or menace; (2) that CALJIC No. 2.50.02 as given impermissibly lessened the prosecution's burden of proof; (3) that the trial court abused its discretion in admitting evidence of lacerations and bruises on the victim because it was undisputed that they had been inflicted prior to the incident for which he was charged; (4) that the trial court should have granted his motion for mistrial because of prosecutorial misconduct; and (5) that the trial court abused its discretion in refusing to strike his prior conviction.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence established that on the afternoon of August 18, 2001, Los Angeles Police Officers Jay Mastick, his partner, Demetrio Mendoza, and four other officers went to an apartment in response to an emergency call regarding an assault with a deadly weapon in progress. The call had been made by neighbors of appellant and Monica Jackson, his girlfriend. Mendoza heard a woman yelling, and Mastick found appellant and Jackson arguing in the bedroom. Jackson was standing in the corner, holding a baby, and appellant was leaning, half sitting and half standing, against the bed frame, holding a partially full wine bottle neck-downward in his clenched fist. He was standing in Jackson's path to the door. Appellant was "very aggressive, yelling profanities."
When the officers entered, Jackson, appearing to be frightened, upset, and very agitated, pointed to appellant and told them, "That's him, that's him. He won't let me leave." Mastick told appellant to put the bottle down and put his hands behind his head. Appellant refused, cursing at the officers. He was told to put the bottle down at least 10 times. Although Mastick told appellant he would spray him with pepper spray if he did not comply, appellant raised the bottle in his hand and "charged" at Mastick. Mastick sprayed him with pepper spray. Appellant struggled with the officers for a few minutes, during which time the officers inflicted some "distraction strikes" on him. Appellant was finally subdued and handcuffed, and the bottle was taken from him.
Jackson told the officers that she and appellant, her live-in boyfriend, were engaged in a heated argument and appellant stated, "The second you put that child down, I'm going to snap your neck." Jackson was very frightened. Appellant put one of his arms around her neck and the other on her arm and pulled her outside, where he swung a bottle at her head, nearly hitting her. She went back inside because the baby was there, and appellant followed h
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