P. v. Zurita
A jury found defendant guilty, as charged, of two counts of domestic battery with corporal injury (Pen. Code, 273.5, subd. (a)) and one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) as against Jane Doe. The jury also found that defendant personally used a knife in the commission of one count of domestic battery (Pen. Code, 12022, subd. (b)(1)). It further found that in committing one count of domestic battery and one count of aggravated assault, defendant inflicted great bodily injury (Pen. Code, 12022.7, subd. (e)). The court stayed the sentence on the aggravated assault conviction and sentenced defendant to state prison for a total term of 10 years. Defendant appeals.
He claims that assault with a deadly weapon is a lesser included offense within the offense of domestic battery with corporal injury as enhanced by Penal Code sections 12022, subdivision (b)(1) and 12022.7, subdivision (e). We disagree. Sentencing enhancements are not taken into consideration in determining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; In re Jose H. (2000) 77 Cal.App.4th 1090.) The judgment is affirmed.
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