Simington

Appellant Carl Lee Simington was charged with attempted murder (Pen. Code, §§ 187, 664—count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)—count 2), and battery with serious bodily injury (Pen. Code, § 243, subd. (d)—count 3). He was acquitted of the attempted murder charge, as well as the lesser offense of attempted voluntary manslaughter. He was found guilty as charged in counts 2 and 3, and the jury also found true as to each count allegations that appellant personally used a deadly weapon and personally inflicted great bodily injury. He was sentenced to seven years in state prison and appeals, contending (1) that the prosecution engaged in misconduct and (2) that the trial court committed instructional error. We affirm.

I. Facts

On May 2, 1992, the appellant, Carl Lee Simington, stabbed the victim, Marshall Murray, with a knife. The stabbing resulted in a chest wound about one and a half inches wide and two inches deep. Murray underwent surgery and spent four days in the hospital. According to medical testimony, Murray’s lung was “probably” punctured as a result of the stabbing, and his lung continues to collapse.

Murray, five feet seven inches and one…