Filed 12/7/05 P. v. Vasquez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Convictions reversed. True findings on priors affirmed.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Steven T. Oetting, Supervising Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Hector Skyhawk Vasquez of mayhem (Pen. Code, § 203)^[1] and assault with a knife (§ 245, subd. (a)(1)), during both of which he inflicted great bodily injury (§ 12022.7, subd. (a)). The jury hung on the charge of aggravated mayhem. In bifurcated proceedings, Vasquez admitted that he had suffered a prior conviction for which he served a prison term (§ 667.5, subd. (b)), a serious prior conviction (§ 667, subd. (a)), and a strike prior (§ 667, subds. (c), (e)(1)). He appeals, claiming jury instruction and evidentiary errors. Based in part on the People's concessions, we reverse his convictions and their attendant true findings, while affirming the true findings as to the priors.

Facts

The victim testified that on June 15, 2002, he and Vasquez argued and Vasquez, whom the victim knew to carry knives, challenged him to a fight outside. On the way out behind Vasquez, the victim grabbed a four-foot-long, two-inch-diameter dowel. Once outside, Vasquez turned around, with a knife in his hand at his side and told the victim, who was holding the middle of the dowel in one hand, to â€