Filed 5/11/17 P. v. Pittman CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER PITTMAN,
Defendant and Appellant.

A147689

(San Francisco City and County
Super. Ct. No. 223697)


Appellant Christopher Pittman was convicted, following a jury trial, of battery, assault, and carrying a dirk or dagger. On appeal, he contends—and respondent agrees—that his conviction for assault must be reversed because he was convicted of battery against the same victim during a single course of conduct. We shall reverse the conviction for assault, and otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with mayhem (Pen. Code, § 203—count I); assault with a deadly weapon (§ 245, subd. (a)(1)—count II); carrying a dirk or dagger (§ 21310—count III); and resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)—counts IV and V). The information further alleged that appellant had previously been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), for purposes of section 667, subdivisions (a)(1), (d), and (e), and section 1170.12, subdivision (c).
Following a jury trial, appellant was found not guilty of mayhem, but was found guilty of the lesser included offense of misdemeanor battery (§ 242); he was found not guilty of assault with a deadly weapon, but was found guilty of the lesser included offense of misdemeanor assault (§ 240); he was found guilty of carrying a dirk or dagger; and he was found not guilty on both counts of resisting, obstructing, or delaying a peace officer. Appellant waived trial on the prior conviction allegations and admitted the prior conviction alleged.
On January 7, 2016, the court sentenced appellant to the midterm of four years on the mayhem count and one-year concurrent terms on the battery and assault counts.
On March 3, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
On the morning of July 28, 2014, Michael Gattis was working as a security officer at a market in San Francisco. During Gattis’s shift, appellant came into the store wearing a mesh backpack over one shoulder. Gattis saw appellant select some food items and place them in a basket. Gattis was outside when he saw appellant exiting the store still holding the basket of food. Gattis had not seen appellant pay for the food and therefore approached him. Appellant jabbed at Gattis with his mesh backpack wrapped around his hand and Gattis put his arm up to defend himself. The backpack hit Gattis on the arm and he received a 9- or 10-inch long cut along his arm from a knife with a six-inch blade that was concealed in the backpack.
DISCUSSION
Appellant’s sole contention on appeal is that his conviction for assault must be reversed because he was convicted of battery against the same victim during a single course of conduct.
“In this state, multiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct. [Citations.] An offense is necessarily included within another if ‘the statutory elements of the greater offense . . . include all the elements of the lesser offense.’ . . . [Citations.] ‘In other words, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” ’ [Citations.]” (People v. Lewis (2008) 43 Cal.4th 415, 518, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920; accord, People v. Ortega (1998) 19 Cal.4th 686, 692, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
“An assault is an incipient or inchoate battery; a battery is a consummated assault. ‘An assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.’ [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 216-217.) Thus, a defendant who commits a battery may not be convicted of both battery and assault arising from a single act. (People v. Ortega, supra, 19 Cal.4th at p. 692.)
In this case, because assault is a necessarily included offense of battery and appellant was convicted of both battery and assault arising out of a single course of conduct, his conviction for assault cannot stand. (See People v. Lewis, supra, 58 Cal.4th at p. 518; People v. Ortega, supra, 19 Cal.4th at p. 692; People v.. Colantuono, supra, 7 Cal.4th at pp. 216-217.)
DISPOSITION
The conviction for misdemeanor assault is reversed. In all other respects, the judgment is affirmed.
 

_________________________
Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.

























People v. Pittman (A147689)