Filed 1/18/22 P. v. Vasquez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DENIS VAS QUEZ,

Defendant and Appellant. B307458

(Los Angeles County

Super. Ct. No. VA144365)

APPEAL from a judgment of the Superior Court of

Los Angeles County, John A. Torribio, Judge. Reversed in part

and affirmed in part.

Jason M. How ell, under appointment by the Court of

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Scott A. Taryle, Supervising Deputy2

Att orney General, and Chung L. Mar, Deputy Attorney General,

for Plaintiff and Respondent.

____________________ Denis Vasquez was convicted following a jury trial of

simple assault (Pen. Code, § 240) 1 as a lesser included offense of

assault with a deadly weap on (§ 245, subd. (a)(1) ) , first degree

burglary (§ 459) and assault by means of force likely to produce

great bodily injury (§ 245, subd. (a)(4))

, with a true finding that

Vasquez had personally inflicted great bodily injury during the

commission of the bu rglary and aggravated assault. On appeal

Vasquez contends, and the Attorney General agrees, that the

simple assault conviction should be reversed because that offense

was necessarily included within the aggravated assault for which

Vasquez was also convic ted. We also agree with Vasquez and

reverse the simple assault conviction

.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Vasquez was charged in an information filed July 5, 2017

with assaulting Ramiro Avila with a deadly weapon, a knife

, on

Ap ril 4, 2016 (count 1) ; first degree burglary on that date by

entering a home occupied by Avila with the intent to commit a

felony (count 2) ; and assaulting Avila by means of force likely to

produce great bodily injury (count 3). The information specially

alleged as to counts 2 and 3 that Vasquez had personally used a

deadly or dangerous weapon in the commission of the offenses

(§ 12022, subd. (b)(1)) and as to all three counts that Vasquez ha d

personally inflicted great bodily injury upon Avila in the

comm ission of the offenses (§ 12022.7, subd. (a))

.

1 Statutory references are to this code.3 2. The Burglary and Assault

The evidence at trial established that on the morning of

April 4, 2016 Avila heard someone knock on his front door and

repeatedly shout the name of Avila’s son. After the front do or

opened, Avila heard the statement, “We’re warning you.” When

Avila went to find out what was happening, he saw his son on his

knees with blood on his face. Vasquez was in front of Avila’s son;

another man was behind him.

Frightened, Avila ran outside through the back door of his

home. Vasquez chased Avila and confronted him in the

backyard. Vasquez hit Avila in the face, causing him to fall.

Vasquez then kicked Avila several times as he lay on the ground.

In a recorded interview with the police fol lowing his arrest,

Vasquez stated he had punched Avila four times with the blunt

end of a pocket knife.

Avila was taken to the hospital after the attack, where he

received sti t ches to his lip area and gums. Avila’s left ring finger

was also broken durin g the incident. 2

3. Verdict and Sentence

The jury found Vasquez not guilty of assault with a deadly

weapon, as alleged in count 1

, but guilty of simple assault as a

lesser included offense of that charge

, and convicted him of first

degree burglary and ag gravated assault as charged in counts 2

and 3. The jury found Vasquez had inflicted great bodily injury

during the burglary and aggravated assault and found not true

2 Vasquez presented an alibi defense at trial. His former

girlfriend testified Vasquez was at home with her on the day of

the attack, helping care for her baby.4

the allegation he had personally used a deadly or dangerous

weapon.

The court sentenced Vasquez to seven years in state prison:

the middle term of four years for first degree burglary p l us

three years for the great bodily injury enhancement. The court

imposed a concurrent term of three years in state prison for the

aggravated assault and si x months in county jail (with credit for

time served) for simple assault.

DISCUSSION

Section 954 allows the People to charge a defendant in an

accusatory pleading with “different statements of the same

offense.” Although section 654, subdivision (a), pro hibits

punishment for more than one offense arising from the same act

or from a series of acts constituting an indivisible course of

conduct, it is generally permissible pursuant to section 954 to

convict a defendant of multiple charges arising from a sing le act

or course of conduct. ( People v. Sanders (2012) 55 Cal.4th 731,

736 .) “However, a ‘judicially created exception to this rule

prohibits multiple convictions based on necessarily included

offenses. [Citations.]’ [Citation.] [¶] When a defendant is found

guilty of both a greater and a necessarily lesser included offense

arising out of the same act or course of conduct, and the evidence

supports the verdict on the greater offense, that conviction is

controlling, and the conviction of the lesser off ense must be

reversed.” (

Ibid. )

“ In deciding whether multiple conviction is proper, a court

should consider only the statutory elements. Or, as formulated in

[ People v. ] Scheidt [(1991) 231 Cal.App.3d 162, 165

- 166]

, ‘only a

statutorily lesser included of fense is subject to the bar against

multiple convictions in the same proceeding. An offense that may5

be a lesser included offense because of the specific nature of the

accusatory pleading is not subject to the same bar.’” ( People v.

Reed (2006) 38 Cal.4t h 1224, 1229 ; accord, People v. Cady (2016)

7 Cal.App.5th 134, 140.) “‘Under the elements test, if the

statutory elements of the greater offense include all of the

statutory elements of the lesser offense, the latter is necessarily

included in the former. ’ [Citation

. ] In other words, ‘“[i]f a

crime cannot be committed without also necessarily committing a

lesser offense, the latter is a lesser included offense within the

former.”’” (

People v. Sanders, supra

, 55 Cal.4th at p. 737 .)

Vasquez’s convictions of simple assault and assault by

means of force likely to produce great bodily injury were based on

the same incident

— the beating of Avila on April 4, 2016. 3 By its

express terms

, the aggravated assault defined by section 245,

subdivision (a)(4), requires proof of a simple assault plus the

element of force likely to produce great bodily injury, necessarily

making simple assault a lesser included offense of the crime for

which Vasquez was convicted in count 3

. ( See People v. Carmen

(1951) 36 Cal.2d 768, 77 5 ; People v. McDaniel (2008)

159 Cal.App.4th 736, 747

- 748 ; People v. Jones (1981)

119 Cal.App.3d 749, 754 .) 4 Accordingly, the simple assault

conviction must be reversed.

3 Vasquez was not charged with having assault ed Avila’s

son.

4 The questions w hether assault by means of force likely to

produce great bodily injury is a lesser included offense of assault

with a deadly weapon

, and whether section 245,

subdivision (a)(1), and section 245, subdivision (a)(4), are merely

different statements of the same offense for purposes of

section 954

, are currently pending in the Supreme Court in

People v. Aguayo , review granted May 1, 2019, S254554.6 D ISPOSITION

Vasquez’s conviction for simple assault (count 1) is

reversed

, and the s entence on that count vacated. The judgment

is otherwise affirmed. The trial court is to prepare a corrected

abstract of judgment and forward it to the Department of

Corrections and Rehabilitation.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.