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People v. Banks1/24/2003
jury to conclude that the injuries were connected with the current assault charge, his fears were unfounded. Mastick testified that he did not see any injuries on Jackson which were attributable to this incident and that there were no injuries on Jackson resulting from this incident. He also testified that he did not see appellant attack or harm Jackson. As indicated, it is clear that this jury was not swayed by evidence of Jackson's statement, since it was unable to reach a verdict on the assault and criminal threats counts and indicated that it was leaning 11 to one for acquittal on the assault charge. The motion for mistrial on the ground of prosecutorial misconduct was properly denied.
V. The trial court did not abuse its discretion in refusing to strike appellant's prior conviction.
Appellant contends that the trial court abused its discretion in refusing to strike his prior strike conviction, based on the nature of the current offense and of the prior strike conviction. He asserts that there was no evidence that he physically contacted Jackson or inflicted any injury on her, and that his strike prior, the conviction of criminal threats resulting from the incident involving Nelson, similarly did not involve violence. While we reject respondent's assertion that the issue is not reviewable on appeal (People v. Myers (1999) 69 Cal.App.4th 305, 309), appellant's contention is without merit.
In a written motion and at sentencing, defense counsel asked the trial court to strike appellant's prior conviction of criminal threats pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Counsel argued that the force or violence underlying his current conviction of false imprisonment was nominal and there were no injuries inflicted on the victim. The prosecutor opposed the request, arguing that appellant had numerous prior convictions and that the prior strike was based on conduct similar to the offense that resulted in the current conviction.
The trial court read and considered the probation report, which disclosed that appellant's criminal history commenced with a conviction of carrying a concealed weapon in a vehicle for which he was placed on probation in 1978, when he was 19 years old. That same year he was also convicted of misdemeanor possession of a controlled substance and, in another case, of felony possession of a controlled substance, for which he was placed on probation. Probation was later revoked and reinstated. In 1979 he was convicted of misdemeanor driving under the influence and placed on probation. In 1980 he was convicted of misdemeanor possession of a controlled substance and was placed on probation. In 1982 he was placed on probation following convictions in separate cases of being under the influence of a controlled substance and of carrying a loaded firearm in a public place. In 1983, in three separate cases, appellant sustained a conviction of misdemeanor child abuse, for which he was sentenced to 17 days in jail, and two convictions of being under the influence of a controlled substance, in which the sentence was not set forth. Following a 1985 arrest, he was placed on probation after a misdemeanor conviction of buying or selling articles with the identification removed.
Appellant was sentenced to prison in 1988 after felony probation was revoked following his 1987 convictions, in separate cases, of possession of a controlled substance and of possession of drugs in jail or prison. Two months before probation was revoked in those matters, he was convicted of misdemeanor false representation of identity to a peace officer, for which he was placed on probation. While on parole he was arrested for receiving stolen property; pros
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