Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. DF008550A Kenneth C. Twisselman II, Judge.
Marcia Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, Acting P.J., Kane, J., Poochigian, J.
A jury convicted appellant, Felix Colon, of attempted murder (Pen. Code, §§ 664/187, subd. (a) - count 1), assault with a deadly weapon (§ 245, subd. (a)(1) - count 2), and assault with a deadly weapon by a prisoner (§ 4501 - count 3), and found true a great bodily injury enhancement (§ 12022.7, subd. (a)) in each count. In a separate proceeding, the court found true allegations that Colon had six prior convictions within the meaning of the three strikes law. (§ 667, subds. (b)-(i).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
On May 27, 2009, the court sentenced Colon to an indeterminate term of 27 years to life and a 3-year enhancement term on count 1 and a stayed indeterminate term of 25 years to life, plus a 3-year enhancement term on each of his two other convictions.
On appeal, Colon contends he was improperly convicted of assault with a deadly weapon. We will find merit to this contention and modify the judgment accordingly. In all other respects, we will affirm.
FACTS
On March 25, 2007, Colon and Alan Stephenson, were inmates at Kern Valley State Prison. At approximately 5:32 p.m., Colon and Stephenson were on their way to the meal line when Colon jumped on Stephenson’s back and began punching him in the face with a sharp instrument in his hand. After guards separated the two men, they found a weapon made from a razor blade and a plastic spoon in the area where the assault occurred. Stephenson suffered lacerations on his face, head, chest and arms and bled profusely.
DISCUSSION
Colon contends he could not be convicted of assault with a deadly weapon in count 2 because that offense is a lesser included offense of the assault with a deadly weapon by a prisoner offense that he was convicted of in count 3. Respondent concedes and we agree.
“It is settled that one cannot be convicted of two offenses which arise from a single criminal act where one offense is necessarily included in the other. [Citations.]” (People v. McDaniel (2008) 159 Cal.App.4th 736, 749.) Assault with a deadly weapon is a lesser included offense of assault with a deadly weapon by a prisoner. (Ibid.)
Colon’s two assault convictions arose from the same criminal assault on Stephenson. Accordingly, we conclude that he cannot be convicted of the greater offense of assault with a deadly weapon by a prisoner and the lesser included offense of assault with a deadly weapon.
DISPOSITION
Colon’s assault conviction in count 2 is reversed. The trial court is directed to file an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.