P. v. McClain

Filed 6/2/06 P. v. McClain CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

A jury convicted defendant Bess Yolanda McClain of assault with a deadly weapon and battery in connection with the stabbing of a 14-year-old girl during an altercation. Defendant admitted the stabbing, which was videotaped by a bystander, but claimed she acted in self-defense. Defendant contends that the trial court erred, and prejudiced her defense, by failing to instruct the jury to view evidence that she made certain out-of-court, oral admissions with caution. Finding any error in that regard to be harmless on the record before us, we affirm the judgment.

I. BACKGROUND

Defendant was charged by information with one count of assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(1); count I), with an enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (a)), and one count of battery with serious bodily injury (§ 243, subd. (d); count II). She pleaded not guilty. Jury trial commenced on April 20, 2005.

A. Prosecution Case

On August 13, 2003, at approximately 6:00 p.m., D.F. was watching football practice at Solano Junior High School. With her were her cousins R.C. and R.P., and friend K.D. D.F. and K.D. were approximately 14 years old at the time.

While at the school, K.D. became involved in a verbal argument with defendant, who was then 37 years old. K.D. knew defendant as someone who had previously dated her brother. Defendant told K.D. that she was going to get her daughter to beat K.D. up. She warned K.D. that, â€