Gutierrez

A jury found Mario Gutierrez guilty of battery against a custodial officer at the Lerdo Detention Facility in Kern County. (Pen. Code, § 243.1; see Pen. Code, § 831, subd. (a).) The trial court found four allegations of serious felony priors (§§ 667, subd. (a)(1), 1192.7, subd. (c)) true within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and imposed a 25-year-to-life term to run consecutively to a term of 25 years to life plus one year already imposed in another case. On appeal, he argues an insufficiency of the evidence issue, two interrelated instructional issues, and a sentencing issue. We affirm the judgment.

DISCUSSION

1. Sufficiency of the Evidence

Gutierrez argues that an insufficiency of the evidence of necessary, not excessive, force by the detention deputy is in the record. The Attorney General argues the contrary.

Before discussing the law, we turn to the record. On the morning of March 22, 2007, Robin Norton, a detention deputy, used the public address system to tell Gutierrez his time in the recreation yard was up. After communicating by radio with Troy Kresha, a detention deputy on the other end of the sally pprt,…