P. v. Ramirez

Filed 3/22/06 P. v. Ramirez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

An information charged defendant in count 1 with assault with a deadly weapon (a bottle) in violation of Penal Code section 245, subdivision (a)(1),^[1] a serious felony within the meaning of section 1192.7, subdivision (c)(8). It also alleged in connection to count 1 that defendant personally inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). In count 2, the information charged defendant with assault with a deadly weapon (a metal chain) in violation of section 245, subdivision (a)(1), also a serious felony (§ 1192.7, subd. (c)(8)). Count 3 alleged that defendant had committed battery resulting in the infliction of serious bodily injury in violation of section 243, subdivision (d), and that defendant had personally inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8). Counts 4 and 5 alleged, respectively, that defendant had committed misdemeanor theft (§ 484) and had committed misdemeanor attempted theft (§§ 484, 664). A jury found defendant guilty of all the foregoing charged offenses and enhancements.

Defendant challenges his convictions for the assaults and battery on the basis of the trial court's admitting into evidence an uncharged prior assault. In addition, he contends the judgment should be modified pursuant to section 654 to stay the sentences for the second count of battery and for the fifth count of attempted theft. We agree that the judgment should be so amended, but reject his argument of prejudicial error regarding the admission of the uncharged prior assault.

BACKGROUND

The Charges

On October 15, 2004, an information was filed against defendant and codefendant Roberto Buenfil Morales. The information charged defendant in count 1 with assault with a deadly weapon (a bottle) in violation of section 245, subdivision (a)(1), a serious felony within the meaning of section 1192.7, subdivision (c)(8). It further alleged that defendant personally inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). In count 2, the information charged defendant with assault with a deadly weapon (a metal chain) in violation of section 245, subdivision (a)(1), also a serious felony (§ 1192.7, subd. (c)(8)). Count 3 alleged that defendant had committed battery resulting in the infliction of serious bodily injury in violation of section 243, subdivision (d), and that defendant had personally inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8). Counts 4 and 5 alleged, respectively, that defendant had committed misdemeanor theft (§ 484) and had committed misdemeanor attempted theft (§§ 484, 664).

The Trial

The Victim's Testimony

At trial, Malcolm Hoover (Hoover), the victim, testified that he worked for the Boys and Girls Club in East Palo Alto, teaching youngsters how to use technology. After work on September 20, 2004, about 8:30 or 8:40 p.m., a friend drove him to the Caltrain station in San Mateo; he was going to catch a train and meet his girlfriend in San Francisco. He stopped to buy slices of pizza and a cup of soda; he was carrying this food with him. He also had a small red bag and blue denim jacket over his arm, with an iPod, a cell phone, and between $30 and $50 inside the jacket's pocket.

Hoover testified that he noticed two men at the gate to the station. One of them held a bottle of beer. Defendant yelled out, â€