P. v. Tran

Filed 9/8/06 P. v. Tran CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Affirmed.

Jennevee H. De Guzman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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Tu Quoc Tran appeals from the judgment entered following his convictions by jury on count 1- felonious assault (Pen. Code, § 245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)); count 2 - battery with serious bodily injury (Pen. Code, § 243, subd. (d)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) and personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)); count 3 - felonious assault (Pen. Code, § 245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)); count 4 - battery with serious bodily injury (Pen. Code, § 243, subd. (d)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) and personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)); and count 5 - possession of a deadly weapon (Pen. Code, § 12020, subd. (a)). The court sentenced appellant to prison for a total unstayed term of five years.

It is settled that battery with serious bodily injury is not a lesser included offense of felonious assault since, inter alia, one can commit assault without touching the victim. However, appellant maintains as to counts 1 and 2 that we should consider enhancements. That is, he argues that the jury, as to count 1, convicted him of felonious assault with personal infliction of great bodily injury, and, as to count 2, convicted him, in pertinent part, of battery with serious bodily injury with personal infliction of great bodily injury.

Based on that argument, appellant makes two claims. First, appellant claims count 2 (battery with serious bodily injury with personal infliction of great bodily injury) is a lesser included offense of count 1 (felonious assault with personal infliction of great bodily injury); therefore, multiple convictions on those counts violated the judicial rule precluding multiple convictions for a greater offense and a lesser included offense. Second, he claims multiple punishment on counts 1 and 2 violated the double jeopardy clause.

We reject appellant's claims. Appellant's double jeopardy claim is moot, since the court stayed punishment on count 2 pursuant to Penal Code section 654. In any event, the double jeopardy clause does not apply to prevent multiple punishment resulting from, as here, a single trial.

Nor does the judicial rule prohibiting multiple convictions based on a greater offense and a lesser included offense apply here since, for purposes of that rule, enhancements in fact are not considered. Therefore, the issue reduces to whether battery with serious bodily injury (count 2) is a lesser included offense of felonious assault (count 1) and, as mentioned, the answer to that question is no. Finally, appellant makes the same claims as to counts 3 and 4, effectively substituting counts 3 and 4 for counts 1 and 2, respectively. However, the analysis applicable to counts 1 and 2 also applies to counts 3 and 4; therefore, we reject appellant's claims as to counts 3 and 4 as well.

We also conclude the trial court properly gave CALJIC No. 2.62, pertaining to when a jury may draw an adverse inference when a defendant testifies but fails to deny or explain evidence introduced against the defendant. Appellant claimed he did not hit the victim of counts 1 and 2, but did not explain the great bodily injuries she received; therefore, the giving of the instruction was proper. Moreover, there was ample evidence of appellant's guilt; therefore, any error in giving the instruction was not prejudicial.

FACTUAL SUMMARY

1. People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on January 24, 2004, Peggy Young and her fiancé Dawn Olvido were at an Arcadia mall. Appellant and his girlfriend were also at the mall. As Olvido was walking he bumped into appellant. However, Olvido continued walking because he did not think he had bumped appellant that hard.

Appellant and his girlfriend, using profanity, confronted Olvido about the fact that he had bumped into appellant, and an argument ensued. At one point appellant asked Olvido what Olvido was going to do. Appellant told Olvido that Olvido was scrawny. Olvido later walked away.

Young and appellant's girlfriend were talking with one another, and Olvido, in an effort to end Young's involvement, approached them. Appellant prevented Olvido from approaching, and appellant moved appellant's shoulder as if appellant was â€