P. v. Burch

Filed 2/15/07  P. v. Burch CA5

NOTTO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b).  This opinion has not been certified for publication or orderedpublished for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of StanislausCounty.  Scott Steffen, Judge.

            Cheryl Rae Anderson, under appointment by theCourt of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson,Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General,Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, forPlaintiff and Respondent.

-ooOoo-

            A jury found appellant Richard Leroy Burch notguilty of attempted murder (Pen. Code,§§ 664, 187)^[1] asalleged in the first count of the first amended information,but convicted him of the lesser included offense of attempted voluntary manslaughter(§§ 664, 192, subd. (a)) and found true allegations that during thecommission of the crime he personally used a deadly and dangerous weapon andpersonally inflicted great bodily injury (§§ 12022, subd. (b), 12022.7, subd.(a)).  The jury also convicted Burch in count two of assault with a deadlyweapon, a knife (§ 245, subd. (a)(1)), and found true that in the commission ofthat offense he personally inflicted great bodily injury (§ 12022.7, subd.(a)).  Burch admitted he suffered a prior conviction within the meaning ofsection 667, subdivision (a) and was convicted of a serious felony within themeaning of sections 667, subdivision (d) and section 1192.7, subdivision (c). 

            Burch was sentenced to a 15-year prison term asfollows:  the three-year midterm for the attempted voluntary manslaughter,doubled to six years, plus one year for the use of a deadly and dangerousweapon enhancement, three years for the infliction of great bodily injuryenhancement and five years for the prior serious felony.  Burch's sentence on theassault with a deadly weapon count and associated enhancement was stayedpursuant to section 654. 

            Burch's sole contention on appeal is that hisconviction for assault with a deadly weapon with the enhancement for personalinfliction of great bodily injury, on which punishment was stayed, should bereversed because it was a lesser offense necessarily included in attemptedvoluntary manslaughter where the latter had enhancements for personalinfliction of great bodily injury and personal use of a deadly weapon.  As weshall explain, we disagree and will affirm the judgment. 

FACTS

            Charles Jeske, also known as C.J., along withhis girlfriend Cecilia Madden, also known as C.C., were in a parking lotspeaking to two people who were seated in a car.  Another man was nearby,seated on his bicycle and listening to their conversation.  As C.J. and C.C.were standing beside the car, Burch rode up to the parking lot on his bike,holding a knife in his hand.  As he neared the group, Burch threw his bikedown, walked over to the group and began yelling â€