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

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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 VASQUEZ,

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. Howell, 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 Deputy 
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Attorney 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 weapon (§ 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 burglary 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 convicted. 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 

April 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 had

personally inflicted great bodily injury upon Avila in the 

commission of the offenses (§ 12022.7, subd. (a)).

1 Statutory references are to this code.
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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 door 

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 following 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 stitches to his lip area and gums. Avila’s left ring finger 

was also broken during 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 aggravated 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. 
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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 plus 

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 six 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), prohibits

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 single 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 offense 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 offense is subject to the bar against 

multiple convictions in the same proceeding. An offense that may 
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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.4th 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, 775; 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 assaulted Avila’s 

son.

4 The questions whether 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.
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DISPOSITION

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

reversed, and the sentence 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.