1

Filed 6/16/15 P. v. Castaneda CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

EDDIE CASTANEDA, 

 Defendant and Appellant. 

 A139113 

 (Contra Costa County 

 Super. Ct. No. 51218908) 

 Defendant Eddie Castaneda got behind the wheel of a car after he had been 

drinking and was involved in a motor vehicle collision. After the collision, defendant got 

out of his car and assaulted the other driver, a 58-year old woman, in front of her 10-year 

old grandson. 

 A jury convicted defendant of driving under the influence causing injury (Veh. 

Code, § 23153, subd. (a)), driving with .08 percent blood alcohol level (Veh. Code, 

§ 23153, subd. (b)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and 

misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a).) The jury also found true the 

allegation that defendant had a blood-alcohol level of .15 percent or more (Veh. Code, 

§ 23578) and made a special finding that the victims suffered injuries as a result of 

defendant driving under the influence. The trial court sentenced defendant to a prison 

term of two-years eight-months. 

 On appeal, defendant claims reversal is required because the trial court improperly 

discouraged a defense witness from testifying. He also claims that his assault conviction 

must be reversed because it is a lesser included offense of battery. Alternatively, 
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defendant asserts that if the assault conviction is not vacated, it must be stayed under 

Penal Code section 654. We affirm. 

I. EVIDENCE AT TRIAL 

A. Prosecution’s Case 

On the evening of December 19, 2011, at about 10:00 p.m., Linda Flynn was 

driving on 10th Street in Antioch. Flynn’s 10-year old grandson, Matthew, was in the 

front passenger seat. They were travelling west on 10th Street, which had no stop signs 

or lights between A and G Streets. Defendant, who was driving south on E Street, failed 

to stop at the intersection with 10th Street. Defendant’s car came across 10th Street and 

collided with Flynn’s car. Both the driver and passenger side airbags in Flynn’s car 

deployed on impact. Flynn slid and slammed her knee against the dash under the steering 

column. Her car was smoking and she could not see out of the windows. Flynn was 

concerned that the car was on fire and told her grandson to hurry and get out. Flynn had 

a hard time getting her seatbelt unbuckled. Her thumb hurt very badly, which she later 

learned had been broken in two places. Flynn’s car was “totaled.” 

 Flynn testified that the other car was “ramming backwards and took off down the 

street,” ending up at the corner. Flynn saw defendant get out of the driver’s side of the 

car and jog towards her. She thought he was coming to ask her how she was doing. She 

asked defendant, “Are you okay?” Defendant did not respond, but instead “socked” her 

in the head and jaw two or three times. Flynn flew backwards, falling on the street. 

Defendant then continued hitting her with a closed fist while Flynn tried to block the 

blows. Flynn asked defendant, “ ‘What are you doing? . . . This is all your fault, not 

mine.’ ” Defendant walked away. 

 Flynn said that an “ex-fireman” came by and asked her what had happened. She 

told him, “ ‘That guy right there, he just knocked the hell out of me.’ ” Flynn’s neck and 

back began to hurt. People from the area came out of their houses and someone had 

called the police. When the police arrived, Flynn told them what had happened. They 

walked her to the curb and she identified defendant as the person who had attacked her. 
3

 Flynn was placed on a board and transported by ambulance to the hospital where 

she was given a shot for pain. Her foot hurt badly and her toenail was almost completely 

ripped off. She suffered an impact fracture to her left knee and could not bend it. Her 

thumb, which was broken in two places, was swollen, and she had severe pain in her 

lower back. Flynn underwent six or seven months of follow-up care, including 

occupational therapy. 

 Matthew Flynn, who was 12-years-old at the time of the trial, recalled the night of 

the accident. He was in the passenger seat of his grandmother’s car when another car 

came from the right without stopping and they crashed into it. He was wearing a seat 

belt. After the crash, Matthew could not feel his legs, his back hurt, and he got whiplash. 

Matthew got out of the car and went to his grandmother who was getting out of the car on 

the driver’s side. Matthew saw defendant get out of the other car, run over to his 

grandmother, and start beating her up. Matthew was scared. His grandmother yelled and 

fell when the man punched her. Even after she fell, defendant kept punching her with his 

fists. Matthew ran down the street to seek help. 

 When the police arrived, they talked to Matthew and showed him a man who was 

passed out. Matthew identified the unconscious man as the person who beat his 

grandmother. Matthew told police he did not know which door defendant had exited the 

car. However, he testified that after thinking about it, he subsequently recalled that 

defendant came out of the driver’s door. 

 Roland Dieck was in Antioch on December 19, 2011, when he drove by the 

collision. Dieck had emergency medical technician and paramedic training, so he 

stopped to help. When he got out of his car, he heard a lady screaming, “ ‘He’s hitting 

me.’ ” She was holding her jaw and had a bloody nose. The woman’s grandson also was 

present. Dieck ran over to Flynn’s side of the car. He did not see Flynn being hit, but 

there was a man near her who was drunk and belligerent. That man swung at Dieck but 

missed; Dieck pushed him to the ground. The man vomited and had a hard time standing. 

The man tried to stagger away, but Dieck made him and a female passenger from his car 

sit on the curb to wait for the police. The female passenger and another passenger were 
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trying to get the man off the ground. When the police arrived, Dieck identified defendant 

as the man who had confronted him. Dieck believed there had been four or five people in 

the man’s car. He saw one of those men get out of that car and run down the road away 

from the accident scene. Dieck just saw the back of the man. Dieck estimated that the 

man was at the scene a few minutes and then he ran away. 

 Antioch Police Officer Jason Joannides was dispatched to the intersection of West 

10th and E Streets about 10:05 p.m. on December 19, 2011. When he arrived he saw two 

vehicles in the street on West 10th Street and several people outside. He contacted Flynn 

who was standing west of the intersection on 10th Street between the sidewalk and her 

car. She was very upset and crying. Flynn said that she was beaten up by the driver of 

the other vehicle, and pointed toward the east sidewalk of E Street. Joannides took Flynn 

there, where she identified defendant, who was seated on the sidewalk, as the driver of 

the other car in the collision and the person who had beaten her. 

 Joannides observed that defendant had objective symptoms of being under the 

influence of alcohol. He had bloodshot, watery eyes, his speech was thick and slurred, 

and he smelled like alcohol. Defendant was verbally confrontational. When Joannides 

asked defendant for his identification, defendant attempted to get it out of his wallet, but 

as he did so he fell backwards on the sidewalk. Defendant told Joannides that he was on 

his way home from Bases Loaded bar when the car crash occurred. He claimed he only 

had a couple of drinks. Defendant subsequently cussed out Officer Joannides. Joannides 

did not perform a field sobriety test on defendant because defendant was on a gurney to 

be transported to the hospital. At the hospital, Joannides witnessed blood being drawn 

from defendant. 

 Officer Joannides arrested defendant for felony driving under the influence. He 

also arrested him for misdemeanor battery based on a citizen’s arrest form filled out by 

Flynn at the hospital. 

 Antioch Police Officer Rick Martin specialized in accident investigations. On 

December 19, 2011, about 10:00 p.m., Martin responded to a report of a vehicle collision 

with injuries at the intersection of West 10th and E Streets. Martin explained that West 
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10th Street is a two lane east-west thoroughfare with no stop signs or lights between A 

and G Streets. E Street is a north-south street with the intersection controlled by stop 

signs in each direction. Martin prepared a diagram of the collision showing the positions 

of the cars when he arrived. Defendant’s car faced east on West 10th Street and Flynn’s 

car was on West 10th Street facing west. The driver’s door on defendant’s car was 

closed. 

 Martin examined the debris field and skid marks and interviewed witnesses at the 

scene, including Flynn, her grandson, and defendant. Defendant told Martin that he was 

at Bases Loaded bar, had a few drinks, and was traveling south on E Street. Defendant 

said that he came to a full and complete stop at the stop sign at the intersection. As he 

entered the intersection, he saw Flynn’s vehicle coming. Defendant said he hesitated at 

the intersection, but he did not explain why. Flynn then collided with his car. 

Afterwards, he got into a verbal argument with Flynn. Defendant was upset, angry, and 

somewhat argumentative. He said he had neck and back pain. His eyes were bloodshot 

and watery, his speech seemed slow and slurred, and there was an odor of alcohol. 

 Martin also spoke to Heather Noonan, a passenger in defendant’s vehicle. Martin 

testified that Noonan was “extremely intoxicated,” crying, and upset. She said they had 

just come from Bases Loaded and defendant was driving. When asked about the details 

of the collision, Noonan was “basically disoriented.” Martin asked if she knew where she 

was, and Noonan believed she was in Concord. There were several people around when 

he interviewed Noonan. Martin also interviewed Anthony Ascarrund, but he was not 

sure where Ascarrund was when he was interviewing Noonan. 

 Based on the debris field and the parties’ statements, Martin determined that 

defendant was driving south on E Street and Flynn was driving west on West 10th Street 

when the collision occurred at the intersection of those two streets. The front of Flynn’s 

vehicle hit the left rear quarter panel of defendant’s car, causing Flynn’s car to veer off 

and defendant’s car to spin counterclockwise. The damage to the cars was consistent 

with this assessment. 
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 Antioch Police Officer Preston Garcia interviewed Roland Dieck at the scene of 

the collision. Dieck identified defendant, who he claimed tried to run from the scene. 

Dieck said that he saw another male who did flee. Dieck lost sight of that person. 

 It was stipulated that a phlebotomist drew blood from defendant at 11:10 p.m. on 

December 19, 2011. The blood was analyzed and determined to contain .23 percent 

blood-alcohol content. 

 Joaquin Jimenez, a criminalist at the Contra Costa County sheriff’s office, testified 

as an expert on the effects of alcohol on the human body. Jimenez explained that alcohol 

is a central nervous system depressant, which slows the body’s ability to transmit signals 

from one nerve cell to another. At low levels of alcohol, a person may become talkative, 

euphoric, have altered judgment and decreased inhibitions. As the alcohol level gets 

higher, a person experiences loss of motor skills, degradation of visual ability, and an 

inability to handle divided attention tasks such as driving. At even higher levels, there is 

slurred speech, staggered gait, and further loss of motor skills and coordination. At 

extremely high levels, there may be loss of consciousness, paralysis, and ultimately 

death. Jimenez explained that people may experience the above symptoms at different 

levels based on their individual tolerance to alcohol, the frequency of their consumption 

of alcohol, and their genetics. However, despite these differences, for most people it 

would be unsafe to drive at .05 blood-alcohol level, and at .08 blood-alcohol level, 

virtually all people are too impaired to drive safely. Jimenez had no doubt that someone 

between .15 and .23 percent blood-alcohol level would be too impaired to drive safely. 

Jimenez stated that running a stop sign, failing to yield to oncoming traffic, having red 

watery eyes, slurred speech, and falling over while sitting are all consistent with someone 

being impaired by alcohol. 

B. Defense Case 

Heather Noonan, defendant’s “significant other” for more than 20 years, was in 

the car on the night of the December 19, 2011 accident. She spoke with a police officer 

at the scene, but she was not honest with him. She told the officer that defendant had 

been driving at the time of the accident, but she was actually the one behind the wheel. 
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Defendant’s brother, Anthony Ascarrund, was not around her when she spoke to the 

officer. However, she claimed that before talking to the police, she told Ascarrund not to 

tell the officer that she was driving because she did not have a license. She admitted that 

at a prior proceeding she said she could not remember whether she talked to Ascarrund 

before or after talking to the police. 

 According to Noonan, they had been at Bases Loaded that night watching the 49er 

football game. When they left, she got into the driver’s seat and defendant sat in the 

passenger seat. Ascarrund sat behind her, and Ismael Sauceto, defendant’s cousin, was 

behind defendant. Initially, she said that she stopped for the stop signs on E Street, but 

then claimed that she was driving on 10th Street. She was unable to explain how she got 

from Bases Loaded to 10th Street; instead, she asserted that she just followed Google 

maps. Noonan told the police that defendant was driving because her license had been 

suspended. She was not concerned about drinking; she claimed she only had one drink at 

Bases Loaded a couple of hours before the accident and denied she was drunk. 

Defendant had “a couple” of drinks. 

 After the collision, Noonan tried to get out of the driver’s door, but it would not 

open. Defendant had opened the passenger door and rolled out. He was not wearing a 

seat belt and appeared to be in pain. Noonan was worried about him. Noonan did not 

know when Sauceto or Ascarrund got out of the car. Her focus was on defendant because 

he was injured and on the ground vomiting. He tried to get up but was stumbling. A man 

then pulled up and “took [defendant] down.” Noonan did not know where Sauceto was 

and was not thinking about him. Instead, she was more concerned about defendant. She 

did not see Sauceto run away; he just disappeared. She knew defendant had not hit Flynn 

because she focused on him the whole time and never let him out of her sight. She never 

saw him take a swing at anyone. 

 The next time Noonan saw Sauceto he was in defendant’s mother’s car about 30 to 

45 minutes after the accident. Later that night, Sauceto told Noonan he had hit the 

woman from the car that collided with them. 
8

 When asked if she called the police to turn herself in, she claimed she did one 

time, but it was a holiday and no one was there. She never called the insurance company 

or the Department of Motor Vehicles to tell them that she was the driver. She never 

contacted anyone, other than defendant’s attorney, after defendant was charged, to claim 

that she had been the driver. 

 At trial, Noonan presented a photograph that she claimed defendant took a few 

days after the collision showing a bruise on her left shoulder allegedly caused by the 

driver’s seat belt at the time of the collision. She admitted that the photo did not show 

her face, but only her chin. At first she denied that the photo was cut off, but when 

confronted with another photo, she admitted it had been cut off. 

 Anthony Ascarrund, defendant’s brother, was 18 at the time of the collision. He 

had been at Bases Loaded bar with defendant, Sauceto, and Noonan watching Monday 

night football. After the game, they all got in the car to go home. Noonan was driving. 

Ascarrund was sitting behind her. He just suffered a small cut as a result of the accident. 

He was wearing a seat belt, but did not get bruised from it. He was able to get out of the 

car, but had to use the back right passenger door. Sauceto got out of the car before him. 

He saw Sauceto go to the right. He did not see Sauceto strike anyone. He did see 

Sauceto run from the scene. When asked how long after the collision Sauceto ran from 

the scene, Ascarrund explained, “I guess maybe like a—after he got hit, like a—not even 

a minute, then our car stops, then he flees.” 

 Later, when they dropped Sauceto off at defendant’s house, Sauceto told 

Ascarrund that he had “hit a lady.” He subsequently repeated that claim. 

 Ascarrund admitted that on the night of the accident, he had lied to the police and 

told them that defendant had been driving. He claimed that before the police talked to 

him, he was a few feet from Noonan and heard the police interviewing her. Noonan told 

the police that defendant was driving. When the police turned away from her, Noonan 

gave Ascarrund a signal with her head and hands, convincing him to say that defendant 

was driving. Noonan never verbally told him what to tell the police—it was a head and 

hand gesture. He went along with Noonan because he respected her and she convinced 
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him. Ascarrund stated that he would lie for people he respected. Ascarrund asserted that 

Noonan did not appear to be drunk at the scene. He did not have anything to drink that 

night. 

 Silvina Castaneda, defendant’s mother, claimed that about 10 minutes after the 

accident on December 19, 2011, her nephew, Ismael Sauceto, called her and told her that 

he punched “a guy.” When she went to defendant’s first court appearance, Sauceto was 

there. At that time he said he had punched the lady that had caused the accident. 

 Silvina said that she went to the accident scene that night. Sauceto was several 

blocks away. She saw Noonan. Noonan did not appear to have been drinking very 

much, but she was very nervous. When Silvina was asked if she obtained a written 

statement from Sauceto, she claimed she got one three-weeks to a month after the 

accident, but did not bring it with her to court. 

 Defendant testified that he was “pretty drunk” on the night of the collision. He 

denied that he was driving or that he beat Flynn. According to defendant, he had been at 

Bases Loaded bar where he had two “Long Island teas” and a shot of tequila. When he 

left, Noonan was driving, defendant sat in the front passenger seat, Sauceto was behind 

him, and Ascarrund was behind the driver. Defendant knew that Noonan had a 

suspended driver’s license, but he chose to have her drive because she only had one drink 

and was not intoxicated. Ascarrund was with them and, although he had not had 

anything to drink, he did not have a license. Sauceto also did not have a driver’s license. 

They drove down G Street toward the freeway and made a left on West 10th Street to go 

home. Defendant denied that they were driving on E Street. 

 Defendant was not wearing a seat belt. After the collision, defendant “stumble[d]” 

out of the front passenger side of the car. He had a lot of pain in his lower back and head. 

Defendant never saw Sauceto hit anyone or run from the scene. At first defendant said he 

did not remember seeing Flynn, but then stated that he may have “faintly” seen her, and 

told her it was her fault because she hit his car. He was “possibly” yelling at her. 

Defendant could not recall if Flynn’s grandson was with her. He acknowledged that he 

was angry and did not ask if she was hurt. However, after saying it was her fault, he 
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turned away and left. He never took a swing at her. A man came by and pulled 

defendant down. The man told defendant to sit and defendant complied. Defendant 

could not recall if he tried to hit the man. 

 Eventually paramedics and the police arrived. Defendant denied telling a police 

officer that he was driving. Instead, he told the officer “we” were driving home from 

Bases Loaded. He also denied telling the officer he was traveling south on E Street, or 

that he failed to come to a complete stop at the stop sign. He did say he got in an 

argument with Flynn, telling her it was her fault. The officer asked him for his driver’s 

license. Defendant did not know why the officer wanted to see it. The officer never 

asked him what had happened. 

 On cross-examination, defendant said that he got out of the passenger side of the 

car, stumbled, fell down, and passed out. He had no idea how long he was on the ground. 

The police were on the scene by the time he got up. When further questioned by the 

prosecutor, he stated that he did not recall if the police were there when he got up or that 

after he got up he went over by Flynn. He did not recall any of his relatives being around 

when he yelled at Flynn. Defendant also acknowledged that to get to his house at the 

time, one would not use the freeway entrance when going west on 10th Street. Because 

he was drunk, defendant could not affirmatively remember whether he told Officer 

Martin he was driving or if he took a swing at anyone at the crime scene. However, he 

was able to recall Noonan was driving, as well as where every one was seated in the car. 

 About a week after the collision, defendant had a conversation with Sauceto in 

which they talked about the accident. Sauceto said he was sorry about what he did and 

the situation in which he put defendant. 

 Defendant took the picture of Noonan’s bruised shoulder. He denied he cut her 

face off of the photo. He admitted that the time stamp on the photos depends on the date 

selected by the person operating the camera. 
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II. DISCUSSION 

A. No Improper Discouragement of Defense Witness 

 Defendant contends his rights to due process and a fair trial were denied when the 

trial court harshly questioned Sauceto and discouraged him from testifying on 

defendant’s behalf at trial. We see no interference with defendant’s constitutional right to 

present a witness in his defense. 

 1. Background 

 a. Preliminary Hearing 

 At the preliminary hearing, defense counsel called Sauceto as a witness. Defense 

counsel informed the court that: “there is a Fifth Amendment issue and a right to an 

attorney issue which I have spoken to Mr. [Sauceto] about. [¶] I just really want to be 

clear that I have told him he has a right to an attorney and that I believe he’s going to 

make a statement today which could incriminate him . . . . He has a right to remain silent, 

right to an attorney, a right to Fifth Amendment privileges. [¶] That being said, he does 

want to testify today.” 

 The court asked Sauceto if he was aware that he could be subject to criminal 

prosecution if he made admissions against his interest; he said he was. The court 

informed him that he had a right to an attorney and asked if he wanted one. Sauceto said 

he did. The court appointed an attorney, Ms. Brewer, to represent Sauceto. Later, 

defense counsel stated that Sauceto was still talking to his attorney and he did not know 

what he was going to do. Subsequently, the court asked attorney Brewer whether it was 

her understanding that Sauceto intended to testify despite the potential for prosecution. 

Brewer stated that was not her understanding. Sauceto then took the stand and invoked 

his Fifth Amendment right when asked questions. 

 b. Evidentiary Hearing 

 Prior to trial, the court held an evidentiary hearing pursuant to Penal Code1

 section 

402 with respect to Sauceto, as well as other defense witnesses. One purpose was to 

 

1

 All further undesignated statutory references are to the Penal Code. 
12

determine if they intended to invoke their right to silence. At the 402 hearing, Sauceto 

testified that about 10:00 p.m. on December 20, [sic] 2011, he was a passenger in the 

back seat of a car being driven by Heather Noonan when there was a collision on the left 

side of the car. Sauceto got out of the car and wondered who had hit them. 

 At that point, the trial court stopped Sauceto and the following exchange took 

place: “THE COURT: Just a minute. Before you say anything else, it is my 

understanding that you are going to admit to having done something of a criminal nature 

yourself. [¶] THE WITNESS: Yeah. [¶] THE COURT: And, therefore, I want you to 

talk to your attorney before you go any further in answering anymore questions. So 

Ms. Brewer is standing next to you. Will you consult with her for a minute before doing 

so. . . .[¶] MS. BREWER: Your Honor, can we go outside or in the back for a second? 

[¶] THE COURT: Yes, probably right outside the front door. [¶] [Defense Counsel]: 

Does the witness understand he has a right to testify or not testify? That’s his choice. 

[¶] MS. BREWER: As his attorney, I will be advising him of what his rights are.” 

 The record reflects that Sauceto and attorney Brewer did confer. The court then 

asked Sauceto if he was going to answer the remaining questions, and he replied, “Yeah.” 

Brewer then said, “Your Honor, I would just like to state that my client is going to testify 

against advice of his counsel. He has been informed of the possible felony crimes he 

could be charged with. He’s also been informed that the legal maximum for those crimes 

is state prison with a three-years eight-months if it’s two, or just three if it’s one.” 

 The following exchange then occurred: “THE COURT: Okay. And you 

understand that? [¶] THE WITNESS: Yeah. [¶] THE COURT: And that’s alright with 

you? [¶] THE WITNESS: No choice. [¶] THE COURT: You do have a choice. That’s 

why we’re sitting here. [¶] THE WITNESS: Okay. [¶] THE COURT: So, is that alright 

with you? [¶] THE WITNESS: Yeah. [¶] THE COURT: All right. So, you’re going to 

go ahead and answer the rest of the questions? [¶] THE WITNESS: Yes. [¶] THE 

COURT: Okay. Go ahead.” 

 Defense counsel then asked Sauceto if he was intoxicated the night of the accident, 

and he answered, yes. Counsel asked, “When you exited the vehicle after the accident, 
13

did you strike a woman named Ms. Flynn?” Sauceto replied, “Yes.” On crossexamination, Sauceto stated that when he previously told the judge that he had no choice 

about testifying, he meant that he “did do it.” He admitted that he had left the scene, but 

maintained that he walked away. He denied he had left the scene to get away from the 

police; he was just walking away. At this point, the trial court interrupted and asked 

Sauceto if he was aware there was a child in the car and that he could be charged with 

child endangerment. Sauceto testified that he did not know there had been a child in 

Flynn’s car or that he could be charged with child endangerment. The court then asked 

Sauceto the following: “THE COURT: Do you know you could be charged with child 

endangerment if you knew a child was in that car? [¶] THE WITNESS: I didn’t know 

there was a child. [¶] THE COURT: That’s what you said. Do you know that you 

could be charged with child endangerment? [¶] THE WITNESS: Yeah. [¶] THE 

COURT: That’s another felony. Do you know that? Do you? [¶] THE WITNESS: Do 

I know that? No. [¶] THE COURT: Do you know that now? [¶] THE WITNESS: 

Yeah. [¶] THE COURT: All right. Do you still want to testify?” 

 Defense counsel interrupted before Sauceto could answer, and asked the court “is 

[this] a proper line of questioning?” The court responded, “Well, I wouldn’t have asked 

it if I didn’t think so. Let’s just see what the answer is.” The following exchange ensued: 

“THE WITNESS: When that occurred, she was standing up. [¶] THE COURT: I’m 

asking you, do you realize that there’s a child in the car, and if you knew that when you 

hit her, you could be charged with child endangerment? Causing the child to witness an 

emotionally traumatic incident is considered child endangerment. [¶] THE WITNESS: 

Yes. [¶] THE COURT: And you still want to testify? You could talk to your lawyer for 

a minute if you want.” 

 After Sauceto conferred with his attorney, the court said, “I was advising you 

about the possible child endangerment. What was your answer to that?” At that point, 

Sauceto responded, “I testify no further.” Sauceto’s attorney advised the court that “He 

wants to invoke at this time.” The court inquired and clarified that Sauceto was taking 
14

the position that any further testimony “might incriminate” him and that he did not intend 

to testify on behalf of the defense. 

 c. Mistrial Motion 

 After all the witnesses had testified at trial, defendant moved for a mistrial, 

claiming that the prosecutor and court had improperly intimidated Sauceto, resulting in 

his refusal to testify. Counsel argued that defendant was denied his right to a fair trial 

under the Fifth, Sixth, and Fourteenth Amendments. 

 The court pointed out that both trial counsel and the prosecutor had expected 

Sauceto to testify at the preliminary hearing, but instead he invoked his Fifth Amendment 

right to silence. Defense counsel agreed that one reason it was suggested that the trial 

court hold the pretrial hearing for Sauceto was to determine if he was actually going to 

testify or invoke his right to silence. The court did not know if a possible child 

endangerment charge caused Sauceto to change his mind, or if he just changed his mind 

like he did at the preliminary hearing. The court observed that even if the mention of a 

possible child endangerment charge did cause Sauceto to change his mind, looking at the 

totality of the case, not one witness identified Sauceto as the person who had hit Flynn, 

including defendant’s witnesses. The only affirmative evidence on who hit Flynn was 

Flynn herself and Matthew. Therefore, the court did not agree that Sauceto’s proposed 

testimony was “consistent with the truth” as counsel asserted. The court agreed that 

Sauceto’s testimony would have been helpful to defendant, but that it was up to Sauceto 

whether he wished to testify. The court found it hard to believe that a misdemeanor child 

endangerment charge would have meant more to Sauceto than the possible felonies he 

faced. In any case, the court noted that it had allowed defendant’s other witnesses to 

testify to Sauceto’s hearsay statements, in which he claimed he hit a woman, on the 

theory that they were against Sauceto’s penal interests. The court noted that the situation 

was problematic since there was no way to cross-examine the alleged statements. The 

court further observed that defendant’s mother initially said that Sauceto told her he hit “a 

guy.” It was only after the charges were read with a female name that she said he 

punched a lady. Finally, the court said it understood that counsel believed defendant was 
15

prejudiced by not having the actual person testify. However, the court noted that Sauceto 

had not been thoroughly cross-examined, and if he had been in front of the jury with 

complete cross-examination, it could have been worse. Thus, the court did not believe 

that Sauceto’s testimony was necessarily consistent with the truth as counsel claimed, and 

did not believe defendant was prejudiced because the evidence that Sauceto confessed to 

hitting the woman was admitted into evidence by the other witnesses rather than Sauceto 

himself. 

 In denying the mistrial motion, the trial court commented that Sauceto had “flaked 

out” on the defense at the preliminary hearing, and it was not surprising he did it again, 

and that it was Sauceto’s choice whether to testify. The court also emphasized that the 

gist of Sauceto’s testimony was before the jury through other witnesses. 

 2. Analysis 

 A defendant has a right to present witnesses in his own defense. (Chambers v. 

Mississippi (1973) 410 U.S. 284, 302; Webb v. Texas (1972) 409 U.S. 95, 98 (Webb); In 

re Martin (1987) 44 Cal.3d 1, 29.) “[T]he right of an accused to have compulsory 

process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth 

Amendment, is so fundamental and essential to a fair trial that it is incorporated in the 

Due Process Clause of the Fourteenth Amendment.” (Washington v. Texas (1967) 388 

U.S. 14, 17-18, fn. omitted.) “The right to compulsory process is independently 

guaranteed by the California Constitution. In the words of article I, section 15, ‘The 

defendant in a criminal cause has the right . . . to compel attendance of witnesses in the 

defendant’s behalf . . . .’ ” (In re Martin, supra, 44 Cal.3d at p. 30.) 

 “A defendant’s constitutional right to compulsory process is violated when the 

government interferes with the exercise of his right to present witnesses on his own 

behalf. [Citations.]” (In re Martin, supra, 44 Cal.3d at p. 30.) Thus, this basic right is 

violated whenever the prosecutor or the trial court intimidates a witness. (See Webb,

supra, 409 U.S. at p. 98.) To demonstrate a violation of this right, a defendant must show 

that the trial court committed misconduct by “engag[ing] in activity that was wholly 

unnecessary to the proper performance of [its] duties and of such a character as ‘to 
16

transform [a defense witness] from a willing witness to one who would refuse to 

testify . . . .’ [Citations.]” (In re Martin, supra, 44 Cal.3d at p. 31.) It must also be 

shown that there is “a causal link between the misconduct and [the defendant’s] inability 

to present witnesses on his own behalf.” (Ibid.) In addition, defendant “ ‘must at least 

make some plausible showing of how [the] testimony [of the witness] would have been 

both material and favorable to his defense.’ [Citation.]” (Id. at p. 32.) 

 It is entirely proper, however, for a prosecutor or a trial court to warn a witness of 

the risk of self-incrimination and his Fifth Amendment rights. (People v. Bryant (1984) 

157 Cal.App.3d 582, 591-592; see People v. Schroeder (1991) 227 Cal.App.3d 784, 787–

788 (Schroeder).) Indeed, “when a trial court has reason to believe that a witness may be 

charged with a crime arising out of events to which he might testify, it has a duty to 

insure that the witness is fully advised of his privilege against self-incrimination. 

[Citation.]” (People v. Warren (1984) 161 Cal.App.3d 961, 972, fn. omitted.) The court 

may advise the witness or appoint counsel to advise the witness. (Schroeder, supra, 227 

Cal.App.3d at p. 788.) When the court undertakes to inform the witness of his or her 

privilege against self-incrimination, “it ‘must walk the fine line between, on the one hand, 

fully advising the witness of the danger of self-incrimination and the right not to testify, 

and, on the other hand, threatening the witness to an extent which materially impairs the 

defendant’s due process right to present witnesses in his [or her] defense.’ [Citation.]” 

(Schroeder, supra, 227 Cal.App.3d at p. 789.) 

 Defendant compares the court’s questioning of Sauceto to the trial court’s conduct 

in Schroeder. There, the defendant sought to introduce the testimony of a woman who 

was also involved in the crimes charged against him and was currently awaiting 

sentencing after entering a “ ‘conditional plea.’ ” (People v. Schroeder, supra, 227 

Cal.App.3d at p. 787.) The woman appeared with her attorney, had consulted with him, 

knew about her privilege against self-incrimination, was advised against testifying, yet 

appeared willing to testify. (Id. at pp. 787.) The court proceeded to question the woman 

repeatedly whether she understood her right to refuse to testify, her attorney had advised 

her to remain silent, and that her testimony could negatively impact her plea agreement. 
17

(Id. at p. 787-792.) At one point, the court said, “ ‘I have never yet seen at least—I 

might be seeing it today, a client fail to follow her attorney’s advise [sic] when advised 

that answers he or she may give could result in he or she being incriminated in that those 

questions can be used against you, . . . in your own case . . . . [¶] . . . [¶] . . . I don’t know 

if it means your plea being accepted or rejected, or whether or not you end up going to 

prison or not.’ ” (Id. at pp. 789-790.) The court continued to reiterate to the witness that 

her counsel believed that testifying was not in her best interests. (Id. at p. 790.) After 

some questions from the witness, the court advised the witness that her only duty 

pursuant to the subpoena was to come to court; she could refuse to answer questions. (Id.

at pp. 790-791.) The court stated, “ ‘You’ve got no burden to do anything beyond that.’ ” 

(Id. at p. 791.) The court advised the witness that anything she said that day could be 

used against her in further proceedings. (Ibid.) The court continued: “ ‘But the thing is 

you are going to decide one way or another whether or not you want to take a lawyer’s 

advice or handle it yourself. [¶] You know, you can also decide whether or not you want 

to have brain surgery . . . or leave it up to a neurosurgeon. You know, you can decide, 

well, you think you’re okay so you’re not going to have brain surgery, or you can leave it 

up to a neurosurgeon to advise you because they’re trained in that field. It’s kind of 

similar to that.’ ” (Id. at p. 792.) Defense counsel objected to the analogy and suggested 

that the discussions could result in coercing or intimidating the witness. (Ibid.) The 

court suggested that the witness confer with her counsel again, but her counsel said they 

had discussed everything already. (Ibid.) The court then asked the witness if she wanted 

to follow counsel’s advice or not. (Id. at p. 793.) She replied, “ ‘I guess I don’t want 

brain surgery, so yes, I do. I guess. If that’s his strict advice then I have to follow it.’ ” 

(Ibid.) 

 The appellate court found error, stating: “This lengthy interchange makes it clear 

that the trial court exceeded its duty simply to ensure the witness was fully apprised of 

her privilege against self-incrimination. She was so advised and expressed her desire to 

testify. At this point, the court had no duty, and no right, to prevent a willing witness 

from incriminating herself or to convince her to follow her attorney’s advice not to 
18

testify. Yet, the trial court in essence became an advocate repeatedly cautioning [the 

witness] about the folly of her decision. Even after defense counsel expressed concern 

that the court’s comments were bordering on coercion and intimidation, the court 

persisted. [¶] Not only were the court’s actions wholly unnecessary to the proper 

discharge of its duties, they unquestionably were coercive in context. Simply by the 

nature of the proceedings, the court’s words carried an intimidating force. This is 

particularly so here since [the witness] had entered a plea in her case and may have been 

wary of doing anything which might displease the court. By its frequent interruptions, 

admonishments and questions, the court inappropriately made clear to [the witness] that it 

disagreed with her intended action and felt that she should not testify.” (Schroeder, 

supra, 227 Cal.App.3d at p. 793.) 

 The facts of the present case are distinguishable from Schroeder. Here, the trial 

court fulfilled its duty to ensure that the witness was properly advised of his privilege 

against self-incrimination and his right not to testify. The advisement was not extensive 

or heavy-handed. And, although Sauceto had spoken to his attorney, he was unaware of 

the possible child endangerment charges, a point the court clarified by noting that a child 

was present at the scene. When Sauceto realized that a child was present and that he 

could face endangerment charges in addition to the other charges, he chose not to testify. 

The court did not overstep the bounds of permissible intervention by ensuring that 

Sauceto was fully aware of the possible dangers of self-incrimination. Unlike in 

Schroeder, nothing suggests that Sauceto felt that he had no choice but to assert his Fifth 

Amendment rights. 

 Defendant contends that the court’s questioning was “calculated to discourage” 

Sauceto from testifying on his behalf. He seeks to characterize the questioning of 

Sauceto as “confrontational and argumentative,” which ultimately “frightened” Sauceto 

into changing his mind about testifying at trial. But on this record, without the benefit of 

viewing the witness’s demeanor, we cannot agree with defendant’s assessment of the 

effect of the court’s questioning on Sauceto. Contrary to defendant’s assertion, nothing 

in the record indicates the judge intimidated Sauceto. 
19

 Equally unpersuasive is defendant’s reliance on cases in which the court or the 

prosecution threatened the sole defense witnesses with perjury charges if they testified. 

 For example, in Webb, the trial court, on its own initiative admonished the sole 

defense witness as follow: “ ‘Now you have been called down as a witness in this case by 

the Defendant. It is the Court’s duty to admonish you that you don’t have to testify, that 

anything you say can and will be used against you. If you take the witness stand and lie 

under oath, the Court will personally see that your case goes to the grand jury and you 

will be indicted for perjury and the liklihood [sic] is that you would get convicted of 

perjury and that it would be stacked onto what you have already got, so that is the matter 

you have got to make up your mind on. If you get on the witness stand and lie, it is 

probably going to mean several years and at least more time that you are going to have to 

serve. It will also be held against you in the penitentiary when you’re up for parole and 

the Court wants you to thoroughly understand the chances you’re taking by getting on 

that witness stand under oath. You may tell the truth and if you do, that is all right, but if 

you lie you can get into real trouble. The court wants you to know that. You don’t owe 

anybody anything to testify and it must be done freely and voluntarily and with the 

thorough understanding that you know the hazard you are taking.’ ” (Webb, supra, 409 

U.S. at pp. 95-96.) 

 The Supreme Court concluded that the trial court deprived the defendant of due 

process by driving his sole witness off the stand. “The trial judge gratuitously singled out 

this one witness for a lengthy admonition on the dangers of perjury. But the judge did 

not stop at warning the witness of his right to refuse to testify and of the necessity to tell 

the truth. Instead, the judge implied that he expected [the witness] to lie, and went on to 

assure him that if he lied, he would be prosecuted and probably convicted for perjury, 

that the sentence for that conviction would be added on to his present sentence, and that 

the result would be to impair his chances for parole.” (Id. at p. 97, fn. omitted.) 

 Similarly, in People v. Bryant (1984) 157 Cal.App.3d 582, the prosecutor 

informed the sole defense witness at a probation revocation hearing that he would 

prosecute the witness for perjury if he testified in accordance with his testimony at the 
20

preliminary hearing. (Id. at 588.) The prosecutor advised the court that he was already 

“personally prosecuting” the witness for his alleged perjury at the preliminary hearing. 

(Ibid.) Once the witness was sworn, the prosecutor stated that he “ ‘would like to inform 

[the witness] . . . that if he . . . testifies . . . essentially [to] the same things . . . he did 

before, in [his] opinion that again would be perjury and [the witness] would be facing 

another count.’ ” (Id. at p. 589, fn. omitted.) On appeal, the court concluded that the 

defendant had been denied a fair trial, explaining that the prosecutor’s “statement went 

far beyond reminding the witness of the duty to tell the truth or advising him of the 

consequences of perjured testimony, and in fact revealed the prosecutor’s ‘expectation’ 

that the witness’ testimony would be perjurious if favorable to appellant, as was his 

preliminary hearing testimony.” (Bryant, supra, 157 Cal.App.3d p. 589.) 

 Here, unlike in Webb and Bryant, no threats or coercive action “effectively drove 

[the] witness off the stand.” (Webb, supra, 408 U.S. at p. 98; Bryant, supra, 157 

Cal.App.3d at p. 593.) 

 Nevertheless, even if some of the trial court’s warnings crossed the line, any error 

was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 

24.) As the trial court noted, Sauceto’s claim that he was the one who hit the lady in the 

other car was brought before the jury through the testimony of four defense witnesses—

defendant’s mother, Noonan, Ascarrund, and defendant himself. Moreover, because it 

was brought in through hearsay, there was no way for the prosecutor to cross-examine 

Sauceto, which would likely have been damaging to defendant. Thus, defendant had the 

benefit of the alleged admission of Sauceto going before the jury without the risks inherent 

in cross-examination. 

 Also, given the totality of evidence, Sauceto’s claim was simply not believable. 

Flynn testified that after the collision, she saw a man get out of the driver’s side of the 

other car. Yet, defendant’s witnesses testified that Sauceto was in the back seat on the 

passenger side, not driver’s side. Both Flynn and her grandson identified defendant as 

the assailant. Also, Dieck, the good Samaritan who stopped to help Flynn, said that he 

heard her yelling that someone was hitting her. Although Flynn was no longer being 
21

beaten as Dieck approached, defendant, who was drunk and belligerent, was nearby and 

took a swing at Dieck. None of these witnesses had any motive to lie. 

 All of defendant’s witnesses, on the other hand, were close relatives who gave 

inconsistent and contradictory stories lacking in any credibility. Defendant admitted that 

he had argued with Flynn, but denied he had hit her. None of the defense witnesses saw 

anyone hit Flynn. Rather, their testimony that Sauceto hit Flynn was based on hearsay 

statements they claimed Sauceto made. Ascarrund’s testimony however negated the 

possibility that Sauceto could have hit Flynn. Ascarrund got out of the car behind 

Sauceto, and saw Sauceto running from the scene. When asked how long after the 

collision Sauceto ran from the scene, Ascarrund testified “after [they] got hit, like a . . . 

not even a minute, then our car stops, then he flees.” (Italics added.) Noonan said she 

knew defendant did not hit Flynn because she never took her eyes off him. Yet, she 

never saw defendant argue with Flynn; a fact defendant admitted. Despite the officer at 

the scene describing her as extremely intoxicated and disoriented, she maintained that 

she only had one drink during the several hours she was at the bar and that she was 

sober. Also, even though she professed to be concerned for defendant’s well-being, she 

told police at the scene that he had been the driver. Later, she claimed that she had lied 

to the police, and that she actually was the driver. 

 Ascarrund, defendant’s brother, also had little credibility. He told the police that 

defendant was driving, yet at trial maintained that Noonan was driving. He claimed that 

he lied to police only because he was right by Noonan when the police were questioning 

her, that he heard her say that defendant was driving, and that she then “convinced” him 

through hand and head gestures to tell the police that appellant was driving. Ascarrund 

testified that he was willing to lie for people he respected. 

 Ascarrund’s testimony also contradicted Noonan’s version of the events. Noonan 

testified that Ascarrund was not near her when she was talking to the police, while 

Ascarrund testified he was right by her. Moreover, Noonan claimed that she verbally told 

Ascarrund to say that defendant was driving, while Ascarrund testified that Noonan never 

actually verbally told him to do so, but just made hand and head gestures. 
22

 Defendant’s mother also was not credible. In fact, she initially said that Sauceto 

told her that he hit a “guy.” Only after hearing the victim’s name, did she refer to a 

“lady” being hit. Defendant’s mother claimed that she got a written statement from 

Sauceto about what he did, but did not have it with her. There was no evidence that she 

ever told anyone about such a written statement. Moreover, she never came forward to 

tell the police or the prosecutor about what Sauceto said, despite her own son being 

accused of the assault. 

Finally, defendant himself was not credible. He admitted that he was extremely 

drunk that night. Whenever confronted on cross-examination with undisputed facts or 

inconsistencies in his statements, he claimed he could not remember because of his 

extreme intoxication. Yet, he was able to clearly remember that he was not driving and 

that he never hit or tried to hit Flynn. 

Even overlooking the numerous inconsistencies in the testimony of the defense 

witnesses, the theory of the defense was at best farfetched. Although defendant was 

purportedly neither the driver of the car nor the assailant who beat Flynn, his family, 

including his significant other of 20 years and his mother, were initially content to wait 

to allow him to take the fall for Noonan and Sauceto. 

 In sum, given the overwhelming evidence of defendant’s guilt, together 

with the implausible and inconsistent claims by defendant and his witnesses, any error 

in the exclusion of Sauceto as a witness was harmless beyond a reasonable doubt. 

B. Aggravated Assault is Not a Lesser Included Offense of Simple Battery 

 Defendant contends that he could not properly be convicted of both the 

assault upon Flynn, as well as for the battery against her. He argues that his assault 

conviction must be reversed because it is impossible to commit a battery without 

assaulting the victim. Thus, he contends that assault is a necessarily included offense 

of the battery. 

 A lesser offense is necessarily included within a greater offense if the greater 

offense cannot be committed without also committing the lesser offense. (People v. Reed

(2006) 38 Cal.4th 1224, 1227.) Simple assault is a lesser included offense of battery 
23

because an assault is “nothing more than an attempted battery.” (People v. Fuller (1975) 

53 Cal.App.3d 417, 421.) Battery requires a touching of the victim; the least touching 

suffices and infliction of injury is not necessary. (People v. Marshall (1997) 15 Cal.4th 

1, 38; People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4.) Assault is complete upon 

the initiation of force towards the victim when the next movement will likely cause a 

battery, even if no touching occurs. (People v. Colantuono, supra, 7 Cal.4th at pp. 216–

217; People v. Page (2004) 123 Cal.App.4th 1466, 1473.) 

 Defendant’s argument on appeal would have some merit if he had been convicted 

of simple assault and battery. Here, however, defendant was charged with and convicted 

of aggravated assault (§ 245, subd. (a)(1) assault with a deadly weapon [fists]) and 

misdemeanor battery (§ 242, 243, subd. (a)). “Our penal statutes prohibiting crimes 

against the person carry a common theme of correlating increased punishment with the 

culpability of the offender in terms of his mental state and the means used rather than the 

gravity of the result. This is consistent with the deterrent theory underlying all penal 

statutes. Thus ‘simple’ battery is always punishable as a misdemeanor with a maximum 

of six months in jail no matter how serious the injury. A similar punishment is prescribed 

for ‘simple’ assault. 

 “The California Legislature, however, in keeping with the theme of increased 

punishment for increased culpability and consistent with the concept of deterrence, 

instead of creating a crime of ‘aggravated battery’ has, as in most jurisdictions, created 

the crime of ‘aggravated assault’ by providing that one who attempts to commit a more 

serious injury by the use of a deadly weapon or means of force likely to produce great 

bodily injury shall be punished as a felon for from six months to life or as a 

misdemeanant with a sentence of up to one year in the county jail, ([ ] § 245) regardless 

of whether injury is actually inflicted. [Citation.] It could not have been the legislative 

intent in imposing such severe punishment as a possible life sentence for assault with a 

deadly weapon that if injury was in fact inflicted the crime would be reduced to simple 

battery. [¶] Battery is not an included offense in the crime of assault with a deadly 

weapon [citation] and patently assault with a deadly weapon is neither a lesser nor 
24

included offense in battery. The test of whether an offense is included in another is 

whether the one offense can be committed without necessarily committing the other. 

[Citations.] A person can commit battery without using a deadly weapon or means likely 

to produce great bodily harm. While an aggravated assault in violation of . . . section 245 

and battery both include the elements of a simple assault, a violation of .[ ] section 245 is 

a greater offense than and separate and distinct from either simple assault or battery.” 

(People v. Fuller, supra, 53 Cal. App. 3d at pp. 421-422.) 

 Moreover, in addition to being distinct from simple assault and simple battery, 

aggravated assault is also distinguishable from felony battery. In In re Ronnie N. (1985) 

174 Cal.App.3d 731, 735 (Ronnie N.), the court squarely held that aggravated assault is 

not a necessarily lesser included offense of felony battery because “a battery inflicting 

serious injury could occur without necessarily using a weapon or force likely to cause 

such serious injury.” (Italics omitted.) Drawing upon People v. Bertoldo (1978) 77 

Cal.App.3d 627, 633-634, the Ronnie N. court gave the example of “ ‘a push that results 

in a fall and concomitant serious injury,’ “ which would be “ ‘triable as felony battery’ “ 

even though it may not entail “sufficient deadly force to permit successful prosecution” 

for aggravated assault “under section 245, subdivision (a).” (Ronnie N., supra, 174 

Cal.App.3d at p. 735.) 

 Thus, it follows that when an individual commits an assault in violation of section 

245 and is successful in inflicting injury upon his victim he may be convicted of both the 

aggravated assault and simple battery even though, as we shall explain post, section 654 

may bar multiple punishment. (People v. Fuller, supra, 53 Cal.App.3d at p. 420.) 

C. Sentencing 

 Alternatively, defendant contends that even if his convictions for both assault and 

battery are proper, he cannot be punished for both offenses. He maintains that his assault 

conviction is the offense that must be stayed. We disagree. 

 Section 654, subdivision (a) (section 654) provides that an act or omission 

punishable in different ways by different provisions of law “shall be punished under the 
25

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision.” 

 Whether a course of criminal conduct is divisible and gives rise to more than one 

act under section 654 depends on the intent and objective of the defendant. If all the 

offenses were incident to one objective, the defendant may be punished for any one of the 

offenses, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; 

People v. Beamon (1973) 8 Cal.3d 625, 637; People v. Perez (1979) 23 Cal.3d 545, 551 

[if defendant entertained multiple criminal objectives independent of and not merely 

incidental to each other, he may be punished for each].) 

 Here, the trial court sentenced defendant to a two-year prison term for the 

aggravated assault. It imposed a concurrent one-year term for the misdemeanor battery. 

Clearly, the aggravated assault and misdemeanor battery of Flynn arose during the same 

course conduct and they were committed with same criminal objective, for which there 

can be but one punishment. (§ 654.) Since defendant was sentenced, albeit 

concurrently, on two separate convictions, one of those sentences must be stayed. (See 

People v. Fuller, supra, 53 Cal.App.3d at p. 420.) “The usual procedure in such 

situations is to leave standing the sentence for the most serious offense of which 

defendant convicted. [Citations.]” (Ibid.) In the instant case, the most serious offense 

that defendant committed was that of aggravated assault. (Id. at p. 421.) 

 Thus, the sentence for aggravated assault is the one that should stand and the 

sentence for misdemeanor battery should stayed. We shall order the abstract of judgment 

be modified accordingly.2

 

III. DISPOSITION 

The abstract of judgment is modified to reflect that the one-year concurrent term 

for sentence on count four for misdemeanor battery (§§ 242, 243, subd. (a)) is stayed 

pursuant to section 654. The superior court is directed to prepare and forward a copy of 

 

2

 We also note that the abstract of judgment erroneously lists the battery offense as 

count five, instead of count four as charged in the information. 
26

the amended abstract of judgment to the Department of Corrections and Rehabilitation. 

As so modified, the judgment is affirmed. 
27

 _________________________ 

 REARDON, J. 

We concur: 

_________________________ 

RUVOLO, P. J. 

_________________________ 

RIVERA, J.