P. v. Prater

Filed 3/23/06 P. v. Prater CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I.

INTRODUCTION

Appellant Christopher Kyle Prater (Prater) appeals from his conviction of assault with a deadly weapon and battery. He maintains that the trial court erred by failing to instruct the jury, sua sponte, on various defenses, and that his trial counsel's failure to request those instructions rendered his assistance ineffective. Prater also argues that the prosecutor engaged in misconduct, and his trial counsel's failure to object likewise demonstrated his ineffectiveness. Finally, Prater urges that the court erred in admitting evidence of the knife found in his room, and that the cumulative errors require reversal. We affirm.

II.

PROCEDURAL BACKGROUND

The San Mateo County District Attorney charged Prater by information with one count of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1)), and one count of battery resulting in serious bodily injury (§ 243, subd. (d)). The information also alleged that Prater used a deadly weapon and caused great bodily injury in the commission of both crimes (§§ 1192.7, subds. (c)(8), (23); 12022, subd. (b) & 12022.7, subd. (a)), served a prior prison term (§ 667.5, subd. (b)) and had one prior strike conviction (§ 1170.12, subd. (c)(1)).

A jury convicted Prater of both counts, and found true the great bodily injury and deadly weapon use allegations. The trial court found true the prior conviction allegations. The court sentenced Prater to a total of nine years in state prison. This timely appeal followed.

III.

FACTUAL BACKGROUND

On September 19, 2004, Prater was living in a room in a house in East Palo Alto. He rented the room from Karen Johnson, who owned and resided in the house.

Prater was acquainted with Daryl Thomas, a homeless crack cocaine addict. In early September 2004, Thomas had a disagreement with his girlfriend, with whom he lived, and moved out of her home. Prater told him he could stay in his room until the house was sold. Thomas began staying in Prater's room on September 17 or 18, 2004. He brought two suitcases full of his clothing and shoes. On the evening of September 18th, he spent the night alone in Prater's room.

Thomas left the room early in the morning of September 19th. He returned and crawled through Prater's window because he did not have a key. Johnson saw him entering by the window at approximately 9:40 a.m. She told Thomas to get his belongings and leave. Thomas and a male friend retrieved his two suitcases and left. Thomas did not steal anything from Prater, â€