P. v. Espinoza
Filed 7/24/06 P. v. Espinoza CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR
| THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER ESPINOZA, Defendant and Appellant. | B184565 (Los Angeles County Super. Ct. No.BA277022) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed as Modified.
Linda Acaldo, 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, Senior Assistant Attorney General, Ana R. Duarte and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
Alexander Espinoza appeals from judgment entered following a jury trial in which he was convicted of assault with a deadly weapon (Pen. Code, § 245(a)(1)) with true findings that he used a deadly and dangerous weapon, a knife, within the meaning of Penal Code section 12022, subdivision (b)(1) and personally inflicted great bodily injury upon the victim within the meaning of Penal Code section 12022.7, subdivision (a). He was sentenced to prison for six years, consisting of the middle term of three years plus three years for the great bodily injury enhancement. A one-year enhancement for the use of the knife was imposed and stayed.[1] He contends the court erred when it imposed one year for the weapon use enhancement. For reasons explained in the opinion, we agree and strike the one-year weapon use enhancement and in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The sufficiency of the evidence to support the conviction and enhancements is not challenged. It will suffice to observe that on January 11, 2005, appellant stabbed Mark McKinney in the neck with a knife, resulting in a cut approximately two inches long requiring 21 stitches. The two men had known each other for approximately seven or eight years; before the stabbing, appellant had questioned Mr. McKinney about money he owed appellant's brother.
DISCUSSION
Appellant correctly contends the court erred when it imposed one year for the weapon use enhancement, because use of the knife was an element of the assault with a deadly weapon conviction.[2] Penal Code section 12022, subdivision (b)(1) provides: â€
