P. v. Sawkow

Filed 4/13/06 P. v. Sawkow CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Gary W. Schons, Senior Assistant Attorney General, Michael T. Murphy and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

In July 2003, during an earlier trial for bank robberies and other crimes, defendant assaulted the prosecutor and scuffled with the court bailiff.^[2] In a second trial, a jury convicted defendant of one felony count of assault on a public official (§ 217.1, subd. (a)); two felony counts of obstructing or resisting an executive officer in performing his duties (§ 69); and one misdemeanor for resisting a peace officer (§ 148, subd. (a)(1).) The court found true the allegations defendant had suffered two prior serious or violent felonies for robbery within the meaning of the Three Strikes Law. (§§ 667, subds. (b)-(i), and 1170.12 (subds. (a), (d).)

The court sentenced defendant to an indeterminate prison term of 50 years to life: two 25-year sentences on counts I and II and a consecutive 25-year sentence on count III. The term for count IV was stayed. (§ 654.)

On appeal, defendant contends count I should be reversed. The parties agree count II was stayed rather than imposed concurrently. We order the trial court to correct the abstract of judgment to strike the reference to two prior prison priors (§ 667.5, subd. (b)), as none were alleged. Otherwise, we affirm the judgment.

2. Facts

Michael Silverman, a deputy district attorney for the County of Riverside prosecuted defendant in the bank robbery case. He attempted to introduce evidence about a homosexual relationship between defendant and his partner in crime, John Huey Honore. During closing argument, defendant shoved Silverman and delivered a sharp blow to his head. Silverman stumbled forward and Heath Noyes, the bailiff, struggled on the ground with defendant. Silverman assisted Noyes in handcuffing defendant. Silverman suffered a soft-tissue injury with some redness on his neck and mild soreness, which he treated with Advil and a muscle relaxant. On the next day of trial, defendant yelled at Silverman, â€