Filed 9/29/17 P. v. Vargas CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL ANGEL VARGAS,
Defendant and Appellant.
|
G054015
(Super. Ct. No. 13CF0903)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Reversed in part, affirmed in part.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
THE COURT:*
Presented with evidence of three separate violent incidents involving three different victims, a jury convicted defendant Miguel Angel Vargas of two counts of assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1); counts 1 & 5);[1] mayhem (§ 203; count 2); misdemeanor assault (§ 240; count 4); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 6); battery with serious bodily injury (§ 243, subd. (d); count 7); and battery on a peace officer (§ 243, subd. (c)(2); count 8). Based on these convictions, a prior conviction, and various enhancements found true by the jury, the court sentenced defendant to 25 years in prison.
The sole contention raised by defendant on appeal is that the conviction on count 6 must be reversed or vacated because it is duplicative of count 5. The enhancement to count 6 found true by the jury — personal infliction of great bodily injury (§ 12022.7, subd. (a)) — would also necessarily fall if defendant is correct.
Counts 5 through 8 were all related to a March 9, 2015 incident in the county jail. Defendant reached through the bars and cut a sheriff’s deputy on the arm with a sharp object. The deputy sustained a cut that was five to six inches long, which penetrated to the bone and muscle. The deputy received 13 stitches and missed two weeks of work.
Section 245, subdivision (a)(1), states: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished . . . .” Section 245, subdivision (a)(4), states: “Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished . . . .”
Citing recent case law (In re Jonathan R. (2016) 3 Cal.App.5th 963), the Attorney General “concedes that [defendant] cannot be convicted of both [counts 5 and 6] because assault with force likely to produce great bodily injury is a necessarily included offense of assault with a deadly weapon other than a firearm.”
We agree with In re Jonathan R., supra, 3 Cal.App.5th 963, and the parties’ analysis of section 245. “[T]he offense specified in subdivision (a)(4), assault by force likely to produce great bodily injury, is necessarily included within the offense specified in subdivision (a)(1), assault with a deadly weapon or instrument other than a firearm.” (In re Jonathan R., at p. 966.) Count 6 and the enhancement thereto must be vacated. (Id. at p. 976 [vacating juvenile court’s findings on challenged count].)
For all practical purposes, this relief will not affect defendant’s sentence. On count 6, the court sentenced defendant “to one third the midterm, doubled, plus one year for the enhancement.” But the court stayed execution of the sentence on count 6 pursuant to section 654. In other words, defendant’s sentence remains at 25 years in prison and there is no need for a new sentencing hearing.
DISPOSITION
The judgment is reversed solely with regard to count 6. The conviction on count 6 for assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) is vacated. The enhancement to count 6 for personal infliction of great bodily injury (§ 12022.7, subd. (a)) is likewise vacated. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
