Filed 2/19/14 P. v. Gathrite CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
ERIC ROSHELLE GATHRITE,
Defendant and Appellant. B245827
(Los Angeles County Super. Ct. No. NA092327)

APPEAL from a judgment of the Su perior Court of Los Angeles County, James B. Pierce, Judge. Modified and, as modified, affirmed with directions. Law Offices of Robert K. Steinberg an d Robert K. Steinberg for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Margaret E. Maxwell and Tasha G. Timbadia, and Thomas C. Hsieh, Depu ty Attorneys General, for Plaintiff and Respondent.

_____________ ____________2 Eric Roshelle Gathrite appeals from th e judgment entered following his conviction by jury on count 1 – assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) and count 2 – battery with serious bodily injury (Pen. Code, § 243, subd. (d)) with court findings he suffered a prior felo ny conviction (Pen. C ode, § 667, subd. (d)), a prior serious felony convic tion (Pen. Code, § 667, subd . (a)), and two prior felony convictions for which he served separate pr ison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 14 years. We modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordan ce with the usual rules on appeal ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206 ( Ochoa )), the evidence established that about 2:30 p.m. on December 23, 2011, Ricky Moore was a parking attendant at a Long Beach parking lot.
Moore testified as follows. Moore saw a ppellant hit appellant’s girlfriend, Nichole Battieste. Appellant hit Battieste about five times while she was sitt ing in the driver’s seat of a car. Moore yelled at appellant that Moore could not just sit by and watch appellant hit her. Appellant charged at Moor e, saying “ ‘ You don’t know me.’ ” When appellant approached Moore, Moore grabbed appellant’s hands because appellant was approaching like appellant was going to fight him. Appellant, about a foot from Moore, to ld him “ ‘I’ll whoop your ass if you keep on. You don’t know who the fuck you fucking with.’ ” Appellant’s fists were at his side but Moore thought appellant was ready to swing. Oscar Contreras, another parking attendant, approached , stood behind Moore, and said, “ ‘Hey, you mess with him, you got to mess with me, man. Wh at’s going on?’ ” Contreras told appellant to back off and asked what was happening. Contreras and appellant argued and a ppellant threatened Contreras. Battieste began pulling appellant3 back towards the car and rep eatedly told him to stop arguing. Appellant then dragged Battieste about 25 to 30 feet to the car, th rew her inside, and repeatedly hit her. Contreras told appellant that he was a punk for hitting Battieste. Appellant removed his shirt. When appellant was removi ng his shirt, Contreras and appellant were exchanging words. Moore testified Cont reras asked “something like, ‘Why don’t you pick on – you hit [a] woman. Why don’t you hit a man.’ ” Appellant went after
Contreras. Moore testified a ppellant chased Contreras “lik e I’m going to fuck you up now. I’m going to beat your ass now.” Appellant chased Contreras across the street. When Contreras saw appellant approachin g, Contreras turned around and began backpedaling away from appellant. Contre ras was too busy backpedaling to put his hands up. Moore also testified Contreras lifted his open hands to protect himself. Contreras, about a foot from appellant, fell, th en stood. When he st ood, he did not stand erect, did not adopt a fighting stance, and di d not protect himself. Appellant punched Contreras in the face, knocking him unconsc ious. Contreras was still unconscious 20
minutes later when an ambulance took him away. During cross-examination, Moore testified appellant had his hands up in a fi ghting position after C ontreras and appellant began arguing.
Contreras testified as follows. Contre ras saw appellant standing inches from Moore. Contreras ran to help Moore. Mo ore told Contreras what had happened, and Contreras saw appellant hit Battieste, who was outside the car, three times in the face. Moore grabbed appellant’s hands because ap pellant was “in [Moore’s] face” again. Moore had various physical injuries and a ba ck problem. Contreras thought that if the
situation escalated after Moor e grabbed appellant’s hands, Moore would not be able to
defend himself. Contreras told appellant that he was a punk for hitting a woman. Contreras said this to defend Battieste by diver ting appellant’s attention to Contreras. Contreras also said this to divert appellant’s attention fro m Moore to Contreras. After Contreras told appellant that he was punk for hitting a woman, appellant became enraged and tried to get4 him. Appellant told Contreras to stay out of his business, Contreras was “ ‘not going to
be able to walk in this town,’ ” and Contreras did no t know who appellant was. Appellant broke free from Moore and tried to get Contreras. Battieste grabbed appellant’s T-shirt, appellant broke free from her grasp, then appellant took off the Tshirt. Appellant began approaching Contreras a nd Contreras backed into the street. Contreras was backpedaling be cause appellant was running to wards Contreras. When Contreras reached the middle of the street, appellant threw a few punches at him. Contreras dodged the punches, tried to hit back, but did no t strike appellant. The two were fighting but punches were not landing. Contreras trippe d and fell. Appellant tried to get on top of Contreras but Contreras kick ed appellant off. When Contreras tried to stand, appellant punched him in the face, knocking him unconscious. Contreras suffered a skull fracture, a broken nose , and three cuts on his face.
2. Defense Evidence. In defense, Battieste testified as follo ws. Battieste was appellant’s fiancée. Appellant banged on the car window because Battieste was in side searching through his cell phone. Battieste denied appellant hit her. An African-American man approached the car and said something to a Hispanic man. The Hispanic man a pproached the car and began fighting appellant, and appe llant fought back. Based only on the fact the Hispanic man approached the car, Battie ste believed the Hispanic man started the fight. The Hispanic man threw a few punche s, striking appellant at least once. Appellant also struck the Hispanic man a few times. Each man hit the other and each fell and hit his head on concrete. A police officer who arrived at the scene testified he saw no marks or bruises
on Battieste.
ISSUES Appellant claims (1) he was denied eff ective assistance of counsel by his trial counsel’s failure to argue principles pertaini ng to mutual combat, (2 ) the offenses alleged
in counts 1 and 2 were a si ngle offense and multiple punish ment on both counts violated5 Penal Code section 654, (3) there was insu fficient evidence suppor ting his convictions, and (4) appellant’s sentence cons tituted cruel and unusual punishment.
DISCUSSION
1. Appellant Was Not Denied Effe ctive Assistance of Counsel.

a. Pertinent Facts. During jury argument, appellant’s counse l did not argue principles pertaining to mutual combat but argued when appellant fo ught Contreras, appellant was exercising his right of self-defense. The court later instru cted the jury on the present offenses and on the right of self-defense. The court, using a modified CALCRIM No. 3471, 1 also instructed on the right of self-defense in connec tion with mutual combat.
b. Analysis. Appellant claims he was denied effectiv e assistance of counsel because his trial counsel failed to argu e to the jury the principles of mutual combat discussed in the modified CALCRIM No. 3471. Appellant argues Moore battered him by grabbing his hands, Contreras later assaulted appellant by saying “you mess with my homey, you mess with me,” and Contreras adm itted taking swings at appellant . Appellant also argues he “attempted to withdraw from the battery committed against him by Mr. Moore by trying

1 The modified instruction, entitled “right to self-defense: mutu al combat or initial aggressor,” (capitalization omitted) read: “A person who engages in mutual combat or who starts a fight has a right to self-defense, only if: [¶] ‘1. He actually and in good faith tried to . . . stop fighting; and [¶] ‘2 . He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and [¶] ‘3. He gave hi s opponent a chance to stop fighting. [¶] ‘If the defendant meets thes e requirements, he then had a right to selfdefense if the opponent continued to fight. [¶] ‘However, if the defendant used only nondeadly force, and th e opponent responded with such sudden and deadly fo rce that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not requir ed to try to stop fighting or communicate the desire to stop to the opponent or give th e opponent a chance to stop fighting. [¶] ‘A fight is mutual combat when it began or conti nued by mutual consent or agreement. That agreement may be expressly stated or implie d and must occur before the claim to selfdefense arose.”6 to free himself and then [appellant] enga ged in combat with Mr. Contreras who threatened [appellant] with an assault putting him in immediate danger and fear.” Appellant further argues when Contreras made threatening statements to him, “it was reasonable for appellant to protect himself fr om a threat to run after Mr. Contreras and begin to fight.” ( Sic .) The record sheds no light on why appellant’s trial couns el failed to act in the manner challenged, the record does not reflect said counsel was asked for an explanation and failed to provide one, and we cannot say th ere simply could have been no satisfactory explanation. We reject appellant’s ineffective assistance claim. (See People v. Slaughter (2002) 27 Cal.4t h 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Moreover, there were satisfactory explanat ions why appellant’s trial counsel might have failed to argue the principles of mutual combat in the modified CALCRIM No. 3471. Appellant’s trial counsel reasonabl y could have concluded as follows. First,
mutual combat occurs only when the parties fight pursua nt to a preexisting agreement to fight. (See fn. 1, ante .) Based on the People’s evid ence, there was no preexisting agreement between appellant and Contreras to fight, and appellant simply assaulted
Contreras. Based on Battieste’ s testimony (which the jury was not obligated to believe in any event) there was no preexisting agreem ent to fight; Contreras simply assaulted appellant. Based on the eviden ce in this case, any effort by appellant’s trial counsel to argue to the jury that appellant and Contrera s fought pursuant to a preexisting agreement to fight would have been unsuccessful. Second, even if the fight between Cont reras and appellant constituted mutual combat, that fact without more did not give ap pellant a right to self-defense. (See fn. 1,

ante .) Outside the rules of sports, the mere fa ct parties engage in mutual combat, i.e., fight pursuant to a preexisting agreement to fi ght, simply means both parties are guilty of assault. (See People v. Lucky (1988) 45 Cal.3d 259, 291.) For this additional reason, any effort by appellant’s trial counsel merely to ar gue to the jury that appellant and Contreras engaged in mutual combat would have been unsuccessful.7 Third, assuming arguendo appellant engage d in mutual combat, we note he would have had a right to self-defense on the facts in this case only if he had fulfilled the three enumerated requirements in CALCRIM No. 3 471. They required, generally speaking, that appellant (1) try to stop fighting, (2 ) communicate he had stopped, and (3) give Contreras a chance to stop fighting (see fn. 1, ante ). However, according to Contreras, for example, appellant ultimat ely was chasing Contreras, a nd Contreras did any fighting while he was retreating from appellant. Based on all the evid ence in this cas e, and even assuming appellant and Contreras initially enga ged in mutual combat, appellant’s trial counsel reasonably could have refrained from ar guing the principles of mutual combat in CALCRIM No. 3471 because appellant had not satisfied the three requirements enumerated therein which, if satisfied, woul d have permitted him to exercise a right of
self-defense. Finally, the jury heard the ev idence, is presumed to have understood and followed the court’s instructions ( People v. Sanchez (2001) 26 Cal.4th 834, 852) including CALCRIM No. 3471, and could have applied that instruction to exculpate appellant if the jury had wanted to do so. Appellant was no t denied effective assistance of counsel.
2. Multiple Convictions Were Proper Bu t Multiple Punishments Were Barred.

a. Pertinent Facts. The reporter’s transcript reflects as follo ws. On October 19, 2012, after the court denied appellant’s Romero 2 motion, the court sentenced appe llant to prison for 14 years, consisting of six years for assault with force likely to produce great bodily injury (count 1) (representing the three-year middle term, d oubled pursuant to the Three Strikes law), with a consecutive three-year term pursuant to Penal Code section 12022.7, subdivision (a), plus five years pursuant to Penal Code se ction 667, subdivision (a ). The court struck the two one-year Penal Code section 6 67.5, subdivision (b) enhancements.

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero ).8 As to appellant’s conviction for battery with serious bodi ly injury (count 2), the court later stated, “And count two, as far as I’ m concerned, that runs concurrent with it. It’s mid-term, all the same reasons I gave be fore. There’s no additional time for that.” The minute order pertaining to the October 19, 2012 sentencing heari ng, and the abstract of judgment, reflect the court, as to count 2, imposed a middle term and stayed it pursuant
to Penal Code section 654. 3
b. Analysis. Appellant claims multiple convictions on counts 1 and 2 were improper because assault with force likely to produce great bod ily injury (count 1) is a lesser included offense of battery with serious b odily injury (count 2). We re ject the claim. Assault with force likely to produce great bod ily injury is not a lesser incl uded offense of battery with serious bodily injury. ( People v. Sloan (2007) 42 Cal.4th 110, 119-120.) Appellant claims multiple punishment on counts 1 and 2 violated Penal Code section 654. The threshold question is wh ether, as respondent claims, the trial court already concluded Penal Code section 654 barred multiple punish ment on counts 1 and 2. As indicated, the reporter’s transcript of the October 19, 2012 sentencing hearing reflects the trial court orally imposed concurrent te rms on counts 1 and 2, while the minute order and abstract of judgment reflect the court im posed a three-year middle term and stayed it pursuant to Penal Code section 654. We c onclude the reporter’s transcript prevails (cf. People v. Smith (1983) 33 Cal.3d 596, 599; People v. Mesa (1975) 14 Cal.3d 466, 471) with the result the record reflects the trial court imposed concurrent terms on counts 1 and 2 and did not apply Penal Code section 654.

3 Said minute order and abstract of judgme nt also reflect as to count 1 the court imposed a prison sentence of 14 years, incl uding (1) a three-year middle term for the offense (not a six-year term pursuant to the Three Strikes law as the court orally pronounced) and (2) a three -year term under Penal Code se ction 667.5, subdivision (b) (although the court orally stated it was striking two one -year terms under that subdivision).9 We asked for supplemental briefing on i ssues pertaining to Penal Code section 654, appellant’s sentence on count 2, and the sentencing minute order and abstract of judgment. Having considered the supplemental letter briefs, we conclude as follows. The parties concede appellant’s sentence on count 2 must be stayed pursuant to
Penal Code section 654. We accept the concession. (Cf. People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.) We will modify the judgment accordingly. ( People v. Alford (2010) 180 Cal.App.4t h 1463, 1469-1472.) The parties concede appellant’s sentence fo r battery with serious bodily injury (count 2) must be doubled pursuant to the Thre e Strikes law. We accept the concession. (Pen. Code, § 667, subd. (e)(1).) Appellant’s sentence for battery with serious bodily injury should have been six years (the thr ee-year middle term, doubled pursuant to the Three Strikes law); therefore, we w ill modify the judgment accordingly. The parties concede that since the tr ial court already imposed a five-year enhancement based on the jury’s true fi nding as to the Penal Code section 667, subdivision (a) allegation, no a dditional enhancement under that subdivision is permitted. We accept the concession. ( People v. Williams (2004) 34 Cal.4th 397, 402.) Finally, as to count 1, the trial court mu st amend the minute order pertaining to the October 12, 2012 sentencing hearing, and the ab stract of judgment, to conform to the trial court’s oral pronouncement of sentence on that count, including the trial court’s disposition of the Penal Code section 667.5, subdivision (b ) enhancements (see fn. 3,

ante ). (Cf. People v. Humiston (1993) 20 Cal.Ap p.4th 460, 466; People v. Solorzano (1978) 84 Cal.App.3d 413, 415, 417.) The tria l court must also amend said minute order and abstract of judgment to reflect appellant ’s sentence on count 2 as modified by this opinion.
3. There Was Sufficient Ev idence Supporting Appe llant’s Convictions. Appellant claims in a paragraph the fact s do not support the ju ry’s verdicts, i.e., there was insufficient evidence supporting his convictions. He argues in essence Moore
and Contreras intervened in an argument between appella nt and Battieste, during the10 argument appellant allegedly hit her, but sh e was not injured and Moore and Contreras were “on the street looking for trouble.” Appellant further argues his actions were “completely justified” because Moore grabbe d appellant, Contreras threatened to fight appellant, and, in the end, appellant struck Contreras once. We reject the claim. We have set forth the pertinent facts in our Factual Summary and have discussed them in connection with appella nt’s ineffective assistance cl aim. Based on the evidence, a jury reasonably could have concluded beyond a reasonable doubt Moore grabbed appellant’s hands in self-defense because ap pellant assaulted him, and appellant later
chased and assaulted Contreras with force likel y to produce great bodily injury (count 1), knocking him unconscious and causing serious bodily inju ry (count 2). The evidence
was sufficient to convince a rational trier of fact, beyond a reasonable doubt, appellant
committed the offenses of whic h he was convicted. (See People v. Williams (2001) 26 Cal.4th 779, 790; Ochoa, supra , 6 Cal.4th at p. 1206; Pen. Code, §§ 240, 243, subd. (d), 245, subd. (a)(1).)
4. Appellant’s Sentence Did Not Vi olate the Eigh th Amendment. Appellant, in a single sentence without argument or citation to case authority, claims his 14-year prison sentence was crue l and unusual punishment proscribed by the Eighth Amendment. Appellant never objected on that ground below; therefore, he waived the issue. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v.
DeJesus (1995) 38 Cal.App.4th 1, 27.) He also waived it by raising it in a perfunctory fashion here. (Cf. People v. Jones (1998) 17 Cal.4th 279, 30 5.) As to the merits, “Appellant has failed to show that this case and this defendant is that ‘exquisite rarity’ [citation], an instance of punishment whic h offends fundamenta l notions of human dignity or which shocks the conscience.” ( People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.) No Eighth Amendm ent violation occurred.11 DISPOSITION The judgment is modified by imposing, as to count 2, a prison sentence of six years for battery with serious bodily injury (the three-year middle term, doubled pursuant to the Three Strikes law), a nd by staying execution of appe llant’s sentence on count 2 pending completion of his sentence on count 1, such stay then to b ecome permanent. As so modified, the judgment is affirmed. The trial court is directed to correct its minute order pertaining to the October 19, 2012 proc eedings, and to forwar d to the Department
of Corrections an amended abstract of judgment, consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J. We concur:

KLEIN, P. J.

ALDRICH, J.