1 Filed 6/16/15 P. v. Castaneda CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ca using injury (Veh. Code, § 23153, subd. (a)), driving with .0 8 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 in cluded offense of battery. Alternatively,2 defendant asserts that if the assault convictio n 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 Antio ch. Flynn’s 10-year old gr andson, Matthew, was in the front passenger seat. They were travelling west on 10th Street, wh ich 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 w ith 10th Street. Defendant’s car came across 10th Street and collided with Flynn’s car. Bo th the driver and passenger side airbags in Flynn’s car deployed on impact. Flynn slid and slammed her knee against the da sh 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 he r 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 de fendant 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. Fl ynn flew backwards, falling on the street. Defendant then continued hitting her with a cl osed 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 k nocked 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 trans ported by ambulance to the hospital where she was given a shot for pain. Her foot hurtbadly 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 se ven months of follow-up care, including occupational therapy. Matthew Flynn, who was 12-years-old at th e 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 sto pping 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 a nd showed him a man who was passed out. Matthew identified the uncons cious man as the person who beat his grandmother. Matthew told police he did no t know which door defendant had exited the car. However, he testified that after thinki ng about it, he subsequently recalled that
defendant came out of the driver’s door.
Roland Dieck was in An tioch on December 19, 2011 , when he drove by the collision. Dieck had emerge ncy 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 blo ody nose. The woman’s grandson also was present. Dieck ran over to Flynn’s side of the car. He did not se e Flynn being hit, but
there was a man near her who was drunk and belligerent. Th at man swung at Dieck but missed; Dieck pushed hi m to the ground. The man vomited and had a hard time standing. The man tried to stagger away, but Dieck ma de him and a female passenger from his car sit on the curb to wait for the police. Th e female passenger and another passenger were4 trying to get the man off the ground. When the police arrived, Dieck identified defendant
as the man who had confronted hi m. Dieck believed there had be en 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 ba ck 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 be tween the sidewalk and her car. She was very upset and crying. Flynn sa id 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 ha d beaten her.
Joannides observed that defendant ha d objective symptoms of being under the
influence of alcohol. He ha d 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, defendan t 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 th e car crash occurred. He claimed he only had a couple of drinks. Defe ndant subsequently cussed out O fficer Joannides. Joannides did not perform a field sobrie ty test on defendant because defendant was on a gurney to be transported to the hospital. At the hos pital, Joannides witne ssed blood being drawn
from defendant.
Officer Joannides arrested defendant for felony driving under th e influence. He also arrested him for misdemeanor battery ba sed on a citizen’s arrest form filled out by Flynn at the hospital. Antioch Police Officer Rick Martin specia lized in accident i nvestigations. 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 West5 10th Street is a two lane east-west thorough fare 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 carfaced 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 sk id marks and interviewed witnesses at the scene, including Flynn, her gr andson, and defendant. Defendant told Martin that he was at Bases Loaded bar, had a few drinks, and wa s traveling south on E Street. Defendant
said that he came to a full a nd complete stop at the stop sign at the intersection. As he entered the intersection, he saw Flynn’s vehicl e coming. Defendant said he hesitated at the intersection, but he did not explain wh y. Flynn then collid ed with his car. Afterwards, he got into a verbal argument wi th 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 slu rred, and there was an odor of alcohol. Martin also spoke to Heat her Noonan, a passenger in defendant’s vehicle. Martin
testified that Noonan was “extre mely 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 disori ented.” 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 inte rviewed Anthony Ascarrund, but he was not
sure where Ascarrund was when he was interviewing Noonan. Based on the debris field and the partie s’ 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 th e intersection of those two streets. The front of Flynn’s vehicle hit the left rear quarter panel of de fendant’s car, causing Flynn’s car to veer off and defendant’s car to spin c ounterclockwise. The damage to the cars was consistent
with this assessment.6 Antioch Police Officer Preston Garcia in terviewed 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 di d 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 blo od was analyzed and determined to c ontain .23 percent
blood-alcohol content. Joaquin Jimenez, a criminalist at the Cont ra 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, whic h 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 sk ills, degradation of visual ability, and an inability to handle divided atten tion tasks such as driving. At even higher levels, there is slurred speech, staggered gait, and further lo ss of motor skills and coordination. At extremely high levels, there may be loss of consciousness, paralysis, and ultimately death. Jimenez explained that people may e xperience 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 le vel, and at .08 blood-alcohol level, virtually all people are too impaired to driv e safely. Jimenez had no doubt that someone between .15 and .23 percent blood-alcohol leve l 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 ot her” for more than 20 years, was in the car on the night of the D ecember 19, 2011 accident. She spoke with a police officer at the scene, but she was not honest with hi m. She told the offi cer that defendant had been driving at the time of the accident, bu t she was actually the one behind the wheel.7 Defendant’s brother, Anthony Ascarrund, wa s not around her when she spoke to the officer. However, she claimed that before talk ing to the police, she told Ascarrund not to
tell the officer that she was dr iving because she did not have a license. She admitted that at a prior proceeding she said she could no t 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 Str eet. She was unable to explain how she got
from Bases Loaded to 10th Str eet; instead, she asserted that she just followed Google maps. Noonan told th e police that defendant was driving because her license had been suspended. She was not concerned about dri nking; she claimed she only had one drink at Bases Loaded a couple of hours before th e accident and denied she was drunk. Defendant had “a couple” of drinks. After the collision, Noonan tried to get ou t of the driver’s door, but it would not open. Defendant had opened the passenger do or and rolled out. He was not wearing a seat belt and appeared to be in pain. Noonan wa s worried about him. Noonan did not
know when Sauceto or Ascarr und got out of the car. Her fo cus was on defendant because he was injured and on the grou nd 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 kne w defendant had not hit Flynn
because she focused on him th e 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 ni ght, 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 ther e. 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 atto rney, after defendant wa s 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 th e photo did not show her face, but only her chin. At first she de nied that the photo was cut off, but when confronted with another photo, sh e admitted it had been cut off. Anthony Ascarrund, defendant’s brother, wa s 18 at the time of the collision. He
had been at Bases Loaded ba r 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 brui sed from it. He was able to get out of the car, but had to use the back right passenger doo r. Sauceto got out of the car before him. He saw Sauceto go to the right. He did no t see Sauceto strike anyone. He did see
Sauceto run from the scene. When asked how long after the collis ion 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 b een driving. He claimed that before the po lice talked to him, he was a few feet from Noonan and hear d the police interviewing her. Noonan told the police that defendant was driving. Wh en 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 ve rbally told him wh at to tell the police—it was a head and hand gesture. He went al ong with Noonan because he resp ected her and she convinced9 him. Ascarrund stated that he would lie for people he respected. Ascarrund asserted that Noonan did not appear to be dr unk 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, Isma el Sauceto, called her and told her that he punched “a guy.” When she went to defe ndant’s first court appearance, Sauceto was there. At that time he said he had punc hed the lady that had caused the accident.
Silvina said that she went to the accide nt scene that night. Sauceto was several blocks away. She saw Noonan. Noonan di d not appear to have been drinking very much, but she was very nervou s. When Silvina was aske d 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. Accordi ng to defendant, he had been at Bases Loaded bar where he had two “Long Isla nd teas” and a shot of tequila. When he left, Noonan was driving, de fendant sat in the front passenger seat, Sauceto was behind him, and Ascarrund was behind the drive r. 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 di d not have a driver’s license. They drove down G Street towa rd the freeway and made a left on West 10th Street to go
home. Defendant denied that th ey 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 hi s 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, he10 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 a rrived. 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 offi cer 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 fau lt. The officer asked him for his driver’s license. Defendant did not know why the offi cer wanted to see it. The officer never asked him what had happened. On cross-examination, defenda nt 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 a ny of his relatives being around when he yelled at Flynn. Defendant also ac knowledged 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 affirma tively 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 ev ery one was seated in the car. About a week after the collision, defenda nt had a conversation with Sauceto in which they talked abou t 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 th e time stamp on the photos depends on the date selected by the person operating the camera.11 II. DISCUSSION A. No Improper Discourageme nt of Defense Witness Defendant contends his rights to due proce ss and a fair trial were denied when the trial court harshly questi oned Sauceto and discouraged him from testifying on
defendant’s behalf at trial. We see no inte rference with defendant’s constitutional right to present a witness in his defense. 1. Background a. Preliminary Hearing At the preliminary hearing, defense coun sel called Sauceto as a witness. Defense
counsel informed the court th at: “there is a Fifth Amendm ent issue and a right to an attorney issue which I have spok en to Mr. [Sauceto] ab out. [¶] 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 hi m . . . . 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 hi s 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 ta lking to his attorney and he did not know what he was going to do. Su bsequently, the court asked a ttorney Brewer whether it was her understanding that Sauceto intended to tes tify 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 ev identiary hearing pursuant to Penal Code 1 section 402 with respect to Sauceto, as well as ot her defense witnesses. One purpose was to

1 All further undesignated statutor y 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. Be fore you say anythi ng 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 yo u 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 te stify 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 atto rney Brewer did confer. The court then asked Sauceto if he was going to answer the re maining 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. [¶] TH E WITNESS: Okay. [¶] THE CO URT: 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 questio ns? [¶] THE WITNESS: Yes. [¶] THE COURT: Okay. Go ahead.”
Defense counsel then asked Sauceto if he was intoxicate d the night of the accident, and he answered, yes. Counsel asked, “Whe n you exited the vehicle after the accident,13 did you strike a woman name d Ms. Flynn?” Sauceto replied, “Yes.” On crossexamination, Sauceto stated th at when he previously told the judge that he had no choice about testifying, he meant that he “did do it.” He admitted th at 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 aw ay. At this point, the tria l 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 y ou 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. [¶] TH E COURT: Do you know that now? [¶] THE WITNESS: Yeah. [¶] THE COURT: All right. Do you still want to testify?” Defense counsel interrupted before Sauc eto could answer, and asked the court “is [this] a proper line of questioning?” The cour t responded, “Well, I wouldn’t have asked it if I didn’t think so. Let’s just see what the answer is.” The followi ng exchange ensued:
“THE WITNESS: When that occurred, she was standing up. [¶] THE COURT: I’m asking you, do you reali ze that there’s a child in the car, and if you knew that when you hit her, you could be charged with child enda ngerment? 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 co uld talk to your lawyer for a minute if you want.”
After Sauceto conferred with his attorn ey, the court said, “I was advising you about the possible child endanger ment. 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 in quired and clarified th at Sauceto was taking14 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 c ounsel and the prosec utor had expected Sauceto to testify at the preliminary hearing, but instead he invoked his Fifth Amendment right to silence. Defense counsel agreed th at one reason it was suggested that the trial court hold the pretrial hearing for Sauceto wa s 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 Sau ceto 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 Sa uceto to change his mind, looking at the totality of the case, not one witness identifie d Sauceto as the person who had hit Flynn, including defendant’s witnesse s. The only affirmative ev idence on who hit Flynn was Flynn herself and Matthew. Th erefore, the court did not agree that Sauceto’s proposed testimony was “consistent with the truth” as counsel assert ed. 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 foun d 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 cr oss-examine the alleged statements. The
court further observed that defendant’s mother initially said that Sauc eto told her he hit “a guy.” It was only after the charges were r ead with a female name that she said he punched a lady. Finally, the court said it understood that counsel believed defendant was15 prejudiced by not having the actual person testif y. However, the court noted that Sauceto had not been thoroughly cross-ex amined, and if he had been in front of the jury with complete cross-examination, it could have be en worse. Thus, the court did not believe that Sauceto’s testimony was necessarily consiste nt 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 in to evidence by the other witn esses rather than Sauceto
himself. In denying the mistrial moti on, 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 te stify. 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 favo r, 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 co mpulsory 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 pros ecutor or the trial court in timidates a witness. (See Webb,

supra, 409 U.S. at p. 98.) To de monstrate 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 pe rformance of [its] duties and of such a character as ‘to16 transform [a defense witness] from a willi ng witness to one wh o 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 witnes s] would have been
both material and favorable to his defense.’ [Citation.]” ( Id. at p. 32.) It is entirely proper, however, for a prosecuto r or a trial court to warn a witness of
the risk of self-incrimination a nd 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 co unsel to advise the witness. ( Schroeder, supra, 227 Cal.App.3d at p. 788.) When the court under takes 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 sel f-incrimination and the right not to testify, and, on the other hand, threatening the witness to an extent which ma terially 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 cour t’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 charge d 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-incrimi nation, was advised ag ainst testifying, yet appeared willing to testify. ( Id. at pp. 787.) The court pr oceeded to question the woman repeatedly whether she un derstood her right to refuse to testify, her attorney had advised her to remain silent, and that her testimony c ould negatively impact her plea agreement.17 ( Id. at p. 787-792.) At one point, the court sa id, “ ‘I have never yet seen at least—I might be seeing it today, a client fa il 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 yourown case . . . . [¶] . . . [¶] . . . I don’t know if it means your plea being accepted or reject ed, or whether or not you end up going to prison or not.’ ” ( Id. at pp. 789-790.) The court continue d 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 th at 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 gotno 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 wa y or another whether or not yo u want to take a lawyer’s advice or handle it yourself. [¶ ] You know, you can also deci de 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 th ey’re trained in that field. It’s kind of similar to that.’ ” ( Id. at p. 792.) Defense counsel obj ected to the analogy and suggested
that the discussions could result in coer cing or intimidati ng 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 w itness 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 to18 testify. Yet, the trial court in essence be came an advocate rep eatedly cautioning [the witness] about the folly of her decision. Even after defense counsel expressed concern
that the court’s comments were borderi ng on coercion and intimidation, the court persisted. [¶] Not only were the court’ s actions wholly unnece ssary to the proper discharge of its duties, they unquestionably we re 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 fe lt 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 w itness was properly advised of his privilege against self-incrimination and his right not to testify. The advisement was not extensive or heavy-handed. And, alth ough 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 rea lized that a child was present and that he could face endangerment charges in addition to th e 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 da ngers 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 “calcula ted to discourage” Sauceto from testifying on his behalf. He seeks to characterize the questioning of
Sauceto as “confrontational and argumentative,” which ultim ately “frightened” Sauceto into changing his mind about tes tifying at trial. But on this record, without the benefit of viewing the witness’s demeanor, we cannot ag ree 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 ju dge 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 ch arges if they testified. For example, in Webb, the trial court, on its own initiative admonished the sole defense witness as follow: “ ‘Now you have be en called down as a witness in this case by the Defendant. It is the Court’s duty to admoni sh you that you don’t have to testify, that anything you say can a nd will be used against you. If yo u take the witness stand and lie under oath, the Court will personally see that your case goes to th e grand jury and you will be indicted for pe rjury and the liklihood [ sic ] is that you woul d get convicted of perjury and that it would be stack ed 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 l east 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 thoro ughly 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 tr ial court deprived the defendant of due process by driving his sole witne ss off the stand. “The trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of pe rjury. 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 im plied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be pr osecuted and probably co nvicted 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 hear ing that he would prosecute the witness for perjury if he testif ied in accordance with his testimony at the20 preliminary hearing. ( Id. at 588.) The prosecutor advise d the court that he was already “personally prosecuting” the witness for his a lleged perjury at the preliminary hearing. ( Ibid. ) Once the witness was sworn, the prosecutorstated that he “ ‘w ould 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 a ppeal, the court concluded that the defendant had been denied a fair trial, explai ning 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 fa ct revealed the prosecutor’s ‘expectation’ that the witness’ testimony w ould be perjurious if favorab le 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 thro ugh the testimony of four defense witnesses— defendant’s mother, No onan, 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 dama ging to defendant. T hus, defendant had the benefit of the alleged admissi on of Sauceto going before the ju ry 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 collis ion, she saw a man get out of the driver’s side of the other car. Yet, defendant’s witnesses testifie d that Sauceto was in the back seat on the passenger side, not driver’s side. Both Fl ynn and her grandson iden tified defendant as the assailant. Also, Dieck, the good Samaritan who stopped to help Flynn, said that he heard her yelling that someone was hitting he r. Although Flynn was no longer being21 beaten as Dieck approached, defendant, who was drunk a nd belligerent, was nearby and took a swing at Dieck. None of th ese witnesses had any motive to lie. All of defendant’s witnesses, on the ot her hand, were close relatives who gave inconsistent and contradictory stories lacking in any credib ility. 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 Fly nn. 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 te stified “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. De spite the officer at the scene describing her as ex tremely intoxicated and disori ented, she main tained that she only had one drink during the several h ours she was at the bar and that she was sober. Also, even though she professed to be concerned fo r defendant’s we ll-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 sh e actually was the driver. Ascarrund, defendant’s brother, also had little credibility. He to ld the police that defendant was driving, yet at trial maintained that Noonan wa s 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 ge stures to tell the police that a ppellant 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. More over, Noonan claimed that she verbally told Ascarrund to say that defendant was driving, while Ascarrund testifie d that Noonan never actually verbally told him to do so, but just made hand and head gestures.22 Defendant’s mother also wa s not credible. In fact, sh e initially said that Sauceto told her that he hit a “guy.” Only after h earing the victim’s name, did she refer to a “lady” being hit. Defendant’s mother cl aimed 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 statem ent. Moreover, she never came forward to tell the police or the prosecu tor 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 clai med 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 inconsiste ncies in the testimony of the defense witnesses, the theory of the defense was atbest 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 a nd his mother, were initi ally content to wait
to allow him to take the fa ll for Noonan and Sauceto. In sum, given the overwhelming evid ence 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 comm it a battery without assaulting the victim. Thus, he contends th at 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 al so committing the lesser offense. ( People v. Reed (2006) 38 Cal.4th 1224, 1227.) Simple assault is a less er included offense of battery23 because an assault is “nothing more than an attempted battery.” ( People v. Fuller (1975) 53 Cal.App.3d 417, 421.) Battery requires a t ouching of the victim; the least touching
suffices and infliction of in jury 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 wh en 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.Ap p.4th 1466, 1473.) Defendant’s argument on app eal would have some merit if he had been convicted
of simple assault and battery. Here, however, de fendant 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 o ffender 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 th e injury. A similar punishment is prescribed for ‘simple’ assault. “The California Legislature, however, in keeping with the theme of increased punishment for increased culp ability and consistent with the concept of deterrence, instead of creating a crime of ‘aggravated batte ry’ has, as in most jurisdictions, created the crime of ‘aggravated assa ult’ by providing that one wh o 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 puni shed 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. [Citati on.] 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 th e 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 nor24 included offense in battery. The test of wh ether 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 withou t using a deadly weap on or means likely to produce great bodily harm. While an aggrav ated 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 distin ct from either simple assault or battery.” ( People v. Fuller, supra, 53 Cal. App. 3d atpp. 421-422.) Moreover, in addition to being distinct from simple assault and simple battery, aggravated assault is also distin guishable from felony battery. In In re Ronnie N. (1985) 174 Cal.App.3d 731, 735 ( Ronnie N. ), the court squarely held th at 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.” (Ita lics 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,’ “ wh ich would be “ ‘triable as felony battery’ “ even though it may not entail “s ufficient deadly force to pe rmit successful prosecution” for aggravated assau lt “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 inflic ting injury upon his victim he may be convicted of both the aggravated assault and simple batter y 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 ev en if his convictions for both assault and battery are proper, he cannot be punished for both offenses. He main tains that his assault
conviction is the offense that mu st be stayed. We disagree. Section 654, subdivision (a) (section 654) provides that an act or omission punishable in different ways by different pr ovisions of law “shall be punished under the25 provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished under more than one provision.”
Whether a course of criminal conduct is di visible and gives rise to more than one
act under section 654 de pends on the intent and objectiv e of the defendant. If all the offenses were incident to one objective, th e 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 defenda nt 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 misdemea nor 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.) “T he usual procedure in such situations is to leave standing the senten ce 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 aggr avated assault is the one that should stand and the sentence for misdemeanor battery should stayed. We shall orde r 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 ba ttery (§§ 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 judg ment 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 De partment of Corrections and Rehabilitation. As so modified, the judgment is affirmed.27 _____________ ____________ REARDON, J.

We concur:

_____________ ____________ RUVOLO, P. J.

_____________ ____________ RIVERA, J.