Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF025904, Mark E. Petersen, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant John Calvin Everhart stabbed at his adult nephew with a homemade spear, piercing the victim’s chest, breaking his rib, slicing his ear, and almost severing his pinky.
A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with enhancements for personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)) and for personally using a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)), and guilty of mayhem (Pen. Code, § 203).
However, the jury also found defendant not guilty of attempted murder. (Pen. Code, §§ 187, subd. (a), 664, subd. (a).) It was unable to reach a verdict on the lesser included offense of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664, subd. (a)); at the prosecution’s request, the trial court dismissed this count.
In a bifurcated proceeding, the trial court found a prior serious felony enhancement true. (Pen. Code, § 667, subd. (a).) Defendant was sentenced to a total of 13 years in prison.
The trial court also found one “strike” prior true. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Later, however, it granted defendant’s motion to strike this strike prior.
Defendant now contends:
1. The trial court erred by excluding evidence that the victim’s family had threatened to remove defendant from his home, including by force, if necessary.
2. The trial court erred by failing to instruct on imperfect self-defense as a defense to the mayhem charge.
3. In instructing that mayhem requires the joint operation of act and intent, the trial court erred by failing to instruct that mayhem required the “specific intent or mental state” of malice.
4. The trial court erred by staying, rather than striking, the deadly weapon personal use enhancement, because deadly weapon use is an element of the underlying offense.
The People concede that the deadly weapon personal use enhancement should have been stricken. We agree. Otherwise, we find no prejudicial error. Accordingly, we will direct the trial court to strike this enhancement, but we will affirm the judgment in every other respect.
I
FACTUAL BACKGROUND
A. The Prosecution Case.
1. Defendant’s family.
Defendant lived in a “barn” on a 10-acre parcel in Aguanga. He was 63 or 64 years old. He had problems with his hips and knees. As a result, he “ha[d] a hard time walking.”
Defendant’s mother, Melba Decker, lived in a separate house on the same property. Defendant was Melba’s caretaker.
Defendant’s sister Lorena lived in a third house on the property. Lorena was married to Richard Beckwith. They had two adult sons — defendant’s nephews — Brian Beckwith and the victim, Robert (Bobby) Beckwith. Bobby was 38 years old, five feet eight inches tall, and 180 to 200 pounds.
There was “a lot of bad blood” between defendant, on one hand, and Lorena and Richard Beckwith on the other hand. Defendant and other family members had a history of feuding, “like the Hatfields and the M[cC]oys.” As of the date of the stabbing, Lorena had not spoken to defendant for about two months. Bobby, however, visited defendant “[a]ll the time, ” including about a week before and again a couple of days before the stabbing. He and defendant “ha[d] never had any troubles” and “ha[d] always been real close.” At trial, he testified, “I love my uncle to this day.”
Brian lived in Arizona; thus, he had seen defendant only three to five times in the preceding 20 years. He testified, however, that those visits were “agreeable, ” and he had “never had a problem” with defendant.
2. Defendant’s character for violence.
Defendant’s ex-wife, Cecilia Chavez, testified that, during a period in the early 1970’s when defendant was “into some drugs, ” he would occasionally “slap [her] around.” One time, “he slapped [her] and [her] jaw snapped.” She did not go to a doctor, so she never knew if it was actually broken or not.
On one occasion in 1983 or 1984, after their divorce, defendant dragged her by the hair out of a car and into the street. He then started hitting her in the face. As a result, she sustained a “little” skull fracture.
Defendant’s sister Lorena testified that defendant was “[a]lways threatening to kill somebody.” “When [she] was little, he split [her] head open.” On another occasion, during an argument, he threatened to kill her. Around the beginning of 2008, he threatened to kill their sister Deanna and all of Deanna’s children.
In 2007, defendant crawled into a neighbor’s window and tried to kill the neighbor (and the neighbor’s brother) by hitting them with a metal pole. He “was under the impression that they stole his battery out of his car.”
Lorena’s husband Richard once saw defendant grab a cat by the tail and swing it against a curb. The cat was “messed up” but not killed.
3. June 15, 2008: The first encounter.
Around noon on June 15, 2008 — Father’s Day — Richard, Bobby, and Brian Beckwith went to defendant’s house. Bobby and Brian had both been drinking beer since about 10:00 a.m.
The men had two dogs with them. “[T]he dogs... went around different sides of the barn.” As a result, the group split up; two of them went around one side of defendant’s house, and the third went around the other side. They found defendant sitting on his front porch. Defendant said, “Why are you sneaking up on me? Why are you on my property?”
Bobby had brought an extra beer for defendant. He handed it to defendant and said, “Happy Father’s Day.” Defendant threw the beer against the wall and yelled, “I’m not your fucking dad.” Bobby replied, “[W]hat the fuck? What’s your problem?... We just came to wish you Happy Father’s Day.” He may have said something like, “Why are you being such a dick?” Defendant yelled, “[G]et the fuck out of here. Leave me alone.” The Beckwith group left and went back home.
4. June 15, 2008: The stabbing.
Over the course of the day, Bobby had about 12 beers. Around 6:00 p.m., he went back to defendant’s house to apologize. He believed that he and defendant had been “so tight for so long” that he “could just talk to him, and it would just blow over....”
When he arrived, defendant was sitting in the same place on the front porch. Bobby walked up to defendant and knelt down next to him. He said, “I want to apologize, I just want[ed] to wish you a Happy Father’s Day.” Defendant looked angry. He replied that he just wanted to be left alone. He told Bobby to leave. Bobby did not leave, however, because he wanted to resolve things first.
At this point, Bobby noticed a homemade spear leaning against defendant’s chair. It consisted of a filleting knife with a four-inch blade duct taped to the end of a pole. Bobby had seen defendant with the spear in the past; defendant had claimed that he was going to stab Bobby’s aunt with it.
Bobby took off the sheath, examined the blade, then replaced the sheath. He started “making fun” of the spear. He laughed and said, “[W]hat are you going to do with that thing? Come on. You are really not going to stab anybody with it.” At trial, he explained, “I was trying to get him to at least talk to me....”
Defendant said, “[W]ell, why don’t you lay down. I’ll show you what I will do with it.” Bobby thought “[i]t was all a joke.” He lay down, with his arms stretched out over his head.
Defendant then stabbed Bobby in the chest with the spear, breaking one of Bobby’s ribs. Bobby yelled, “Oh, fuck. You stabbed me.” Defendant then went to stab Bobby in the face. Bobby put up his left hand in a defensive gesture. The knife cut his pinky finger almost all the way off; the pinky was held on by a “little piece” of “meat” on his palm. In the same motion, it “cut [his] ear in half, ... all the way down to the cartilage, ” and nicked his head. Bobby later realized that, at some point, defendant had also stabbed him in the pinky toe.
Doctors managed to reattach the pinky.
Bobby “scrambled” to his feet, ran away, and went home. As he neared his house, Brian saw him and asked, “What’s wrong?” He replied, “[Defendant] just stabbed me. Call 911. I’m going to die.” Brian called 911.
Once other family members had arrived to care for Bobby, Brian went looking for defendant. First, he went to defendant’s house, but defendant was not there. Brian saw the spear as well as the sheath. He also saw “splattered” blood and signs of a “scuffle.”
Next, Brian went to Melba’s house; there he found defendant. Defendant said he was going home, but Brian said, “You’re not going anywhere” and restrained him. The two traded blows, but defendant could not get away. At one point, Brian patted defendant down and found a four-inch kitchen knife in his pocket. Because defendant kept trying to leave, the fight moved out the front door. Brian set the knife on a railing. When he saw Melba holding the knife, he took it away from her and threw it inside the house.
The police did not find a knife. Brian did not turn a knife over to them and did not tell them that defendant had a knife. However, because Brian was on the phone with a 911 dispatcher throughout his confrontation with defendant, the following exchange was tape-recorded:
When police officers arrived, they found defendant and Brian sitting outside Melba’s house. At defendant’s house, they found the spear and the sheath lying outside on the ground.
When defendant was arrested, he had various cuts and bruises. Brian testified, however, that defendant sustained all of these injuries during their fight.
B. The Defense Case.
1. Evidence regarding the stabbing.
Throughout the day, Michael Strickland, a mechanic, was at defendant’s house, working on defendant’s car. He did not actually see the stabbing. However, he did see Bobby holding his chest and heard him say, “I just got stabbed.” Strickland told police that it was defendant who wanted to make up with Bobby, but Bobby would not accept defendant’s apology. However, he also told police that defendant told him that he had just stabbed Bobby. He believed that defendant was intoxicated.
Cecilia, defendant’s ex-wife, testified that defendant had a cane because of his bad hip. Defendant’s mother once told her that defendant had attached a knife to it to kill snakes.
Cecilia claimed that she spoke to Bobby “a few days” after the stabbing. He told her that “he came up behind [defendant]... a couple of times, he kept messing with him.... [T]he third time he came up behind him and yanked the cane out of his hand and when he did so, he cut his hand.” At that point, Bobby got angry, and they started fighting. Bobby denied telling Cecilia any of this.
This was hard to reconcile with the fact that Bobby’s pinky was cut from back to front.
Cecilia also claimed that she had phoned a particular police officer “about eight times” to tell him “that [defendant] was innocent and that Bobby had started it.” The officer denied this.
2. Bobby’s character for violence.
Cecilia testified that Bobby was “a violent person.”
According to Richard, Brian, and Bobby’s own girlfriend, Bobby “could be aggressive” when drunk.
Bobby admitted, “If I am drinking hard alcohol, I become an idiot.” In 2001, he yelled at “a clerk behind a counter” and threatened to fight him. In 2006, after having “a couple of beers, ” he got into a fight with Brian, involving pushing and rolling around on the ground. In 2007, after drinking hard alcohol, he pushed his girlfriend into a kitchen table.
According to Brian’s ex-girlfriend, Bobby was “incredibly violent.” He would “regularly... pick fights with Brian, and very violent fights.” In a phone call with her daughter, then 11 years old, he had threatened to come over and beat the girl up.
II
THE EXCLUSION OF EVIDENCE OF PRIOR THREATS BY THE BECKWITHS
Defendant contends that the trial court erred by excluding evidence that the Beckwiths had threatened to remove him from the property, including by force.
A. Additional Factual and Procedural Background.
During a discussion of motions in limine, defense counsel indicated that he would introduce evidence that “the Beckwiths had made many threats to remove Mr. Everhart and his mother by force, if necessary.” As an offer of proof, he stated that Brian Beckwith’s ex-girlfriend, Mary Seay, would testify that “the Beckwiths [had] expressed an intent to remove [defendant] and [his mother] so the land would be theirs.” He argued that this evidence was relevant “to whether [defendant] was the aggressor.” “[I]f they have a history [of] violence and intimidation, I think that would be relevant as to whether [defendant] is protecting himself.”
Throughout the discussion of this issue, both counsel mistakenly referred to Seay as “Mary Sayers.”
The prosecutor responded, in part: “It is my understanding that [Seay]... will only be testifying as to statements that she heard Melba Decker say to her.” He added, “[S]o her foundation for it is hearsay, and, therefore, we would be objecting on the ground of hearsay.”
Defense counsel disagreed: “My understanding is she did not receive this information from Melba Decker. She has been informed of this ongoing feud from the Beckwiths, is my understanding.” “[S]he was... told by the Beckwiths they were going to remove [defendant]... from the land.”
The trial court ruled: “All those items by [Seay] have no probative value in this case. They do not go to whether or not self-defense took place [on the] date of the alleged incident....” It added that the evidence “will mislead and d[is]tract the jury.... It will confuse them and consume several days of confusing testimony.”
Defense counsel then filed a written offer of proof. In it, he represented that the Beckwiths “all told [Seay] they were going to have the property to themselves and would get rid of anyone who got in their way of having it. When [Seay] heard this, she thought they were just spouting off and did not think they were really serious.” Seay would also testify that the Beckwiths “attempted to get [defendant] to leave by the[ir] usual method of intimidation and threats....” Defense counsel argued that the evidence was relevant to show that the Beckwiths were biased.
The trial court once again excluded the evidence as irrelevant and alternatively as tending to confuse the jury and consume undue time.
B. Analysis.
Defendant argues that the trial court erred because the evidence was relevant to show that he acted in self-defense.
“Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citations.]
“One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.] Imperfect self-defense mitigates, rather than justifies, homicide; it does so by negating the element of malice. [Citations.]” (People v. Randle (2005) 35 Cal.4th 987, 994, original quotation marks corrected, overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Evidence that the victim has threatened the defendant may be relevant and admissible to support a self-defense claim. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) “... ‘Common sense and experience tell us that it is reasonable for a person threatened by another to be on heightened alert upon encountering that threatener, and to reasonably take [the threat] into account in deciding the necessity for, and the amount of, defensive action, in response to any act on the part of the threatener reasonably appearing to be calculated to carry out that threat.’” (Ibid.)
The evidence here, however, would have been insufficient to raise an issue as to perfect self-defense. Even assuming the Beckwiths had made the prior threats that were imputed to them, defendant could not possibly have had a reasonable belief that he was in imminent danger of death or great bodily injury. Earlier in the day, he had been visited by Richard, Brian, and Bobby Beckwith. Merely because they approached him from two different directions, he leaped to the conclusion that they were sneaking up on him. However, they did nothing else that could have been perceived as hostile or unfriendly. To the contrary, Bobby wished defendant a happy Father’s Day and offered him a beer. When defendant ordered them to leave, they left.
Later that day, Bobby came back alone. He knelt down next to defendant. He apologized. This was not the conduct of a man trying to drive defendant out of his home by force. Defendant tries to portray Bobby’s conduct immediately after that — examining the spear, removing its sheath, and asking defendant what he was going to do with it — as threatening. However, when defendant said “[W]hy don’t you lay down. I’ll show you what I will do with it, ” Bobby complied. He was lying on his back, unarmed, with his arms raised above his head. At that point, no reasonable person in defendant’s position would have believed it was necessary to stab Bobby to protect himself. Thus, the evidence was irrelevant to show perfect self-defense.
We also note that the proffered evidence was extremely weak. Defense counsel vaguely offered to show threats from “the Beckwiths.” All of the other evidence showed that Bobby was not a party to any of the disputes between his parents and defendant. He loved defendant and visited him regularly. Moreover, Seay herself did not take the threats seriously. Hence, even assuming the evidence was marginally relevant, the trial court did not abuse its discretion by determining that its probative value was minimal and thus was outweighed by its tendency to consume undue time and to confuse the jury.
We may assume, without deciding, that the evidence was relevant to imperfect self-defense. Even if so, however, as we will discuss in part II, post, imperfect self-defense simply was not a defense to assault with a deadly weapon (count 2) or mayhem (count 3) — the only charges on which defendant was found guilty. While it was at least potentially a defense to attempted murder (count 1), the jury acquitted defendant of that charge; moreover, it hung on the lesser included offense of attempted voluntary manslaughter, which was dismissed.
Accordingly, even assuming the trial court erred, it is clear, beyond a reasonable doubt, that the error did not affect the verdict. We therefore conclude that it was harmless.
III
FAILURE TO INSTRUCT ON IMPERFECT SELF-DEFENSE AS A DEFENSE TO MAYHEM
Defendant contends that the trial court erred by failing to instruct on imperfect self-defense as a defense to the mayhem charge.
However, imperfect self-defense simply is not a defense to mayhem. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 835; People v. Quintero (2006) 135 Cal.App.4th 1152, 1164-1167; People v. Hayes (2004) 120 Cal.App.4th 796, 801-805; People v. Sekona (1994) 27 Cal.App.4th 443, 448-457.)
“‘Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.’ (Pen. Code, § 187, subd. (a), italics added.) By contrast, ‘Manslaughter is the unlawful killing of a human being without malice.’ (Pen. Code, § 192, italics added.)... [¶]... ‘An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’ [Citation.]” (In re Christian S. (1994) 7 Cal.4th 768, 773.)
Malice for purposes of murder is defined in Penal Code section 188. Mayhem, too, requires “malic[e].” (Pen. Code, § 203.) Malice for purposes of mayhem and other crimes, however, is defined in Penal Code section 7 as either “a wish to vex, annoy, or injure another person” or “an intent to do a wrongful act.” (Pen. Code, § 7, subd. 4.) It is well established that “malice” as defined in Penal Code section 7 differs from “malice” as defined in Penal Code section 188. (People v. Gorshen (1959) 51 Cal.2d 716, 730-731, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5, 327, fn. 7.) An honest but unreasonable belief in the need for self-defense is not inconsistent with a wish to injure.
Moreover, “[t]he words willfully, knowingly, and maliciously are usually expressions of general criminal intent when used in a penal statute. [Citations.]” (People v. Dollar (1991) 228 Cal.App.3d 1335, 1340.) “General intent is present ‘[w]hen a person intentionally does that which the law declares to be a crime... even though he may not know that his act or conduct is unlawful.’” (People v. Turner (1983) 145 Cal.App.3d 658, 682, disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6 and People v. Majors (1998) 18 Cal.4th 385, 411.) In other words, an “intent to do a wrongful act, ” within the meaning of the definition of malice, does not require knowledge that the act is wrongful. Thus, an honest but unreasonable belief in the need for self-defense is additionally not inconsistent with the intent to do a wrongful act.
Under common law, a mistake of fact can disprove criminal intent (see Pen. Code, § 26, subd. Three) only if it is both honest and reasonable. (People v. Reed (1996) 53 Cal.App.4th 389, 396 [Fourth Dist., Div. Two].) The Supreme Court recognized an exception to this principle in the case of murder based, in part, on “the long development of the doctrine” of unreasonable self-defense, going back to 1936 in California and as early as 1896 in other states. (In re Christian S., supra, 7 Cal.4th at pp. 776-777.) Historically, however, no similar exception has been recognized for mayhem (or for any other crimes requiring malice as defined in Penal Code section 7).
Defendant relies on People v. McKelvy (1987) 194 Cal.App.3d 694. There, however, a single justice concluded that unreasonable self-defense is a defense to mayhem, on which the trial court was required to instruct sua sponte. (Id. at pp. 701-707 [lead opn. of Kline, P.J.].) The other two justices concurred in the judgment only. (Id. at p. 707 [conc. opn. of Smith, J.].) In a separate concurring opinion, they found no evidence “that defendant held an honest but unreasonable belief in the need for self-defense.” (Ibid.) They concluded that there was “no need for the discussion in the lead opinion regarding the sua sponte requirement to instruct with regard to this defense.” (Id. at p. 708 [conc. opn. of Smith, J.].)
Because the lead opinion in McKelvy spoke for one justice only, it is not precedential. Moreover, for the reasons already discussed, we do not find it particularly persuasive. Szadziewicz, Quintero, Hayes, and Sekona, discussed above, all refused to follow McKelvy. We do likewise.
We therefore conclude that the trial court did not err by failing to instruct on unreasonable self-defense as a defense to mayhem.
IV
FAILURE TO INSTRUCT THAT MAYHEM REQUIRES THE JOINT OPERATION OF AN ACT AND THE MENTAL STATE OF MALICE
Defendant contends that, after instructing that mayhem requires the joint operation of act and intent, the trial court erred by failing to instruct that mayhem required the “specific intent or mental state” of malice.
A. Additional Factual and Procedural Background.
The trial court gave Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 252, which stated:
“The crimes... charged in Counts 1, 2, and 3 require proof of the union or joint operation of act and wrongful intent.
“The following crimes... require general criminal intent:
“Assault with a deadly weapon, as charged in count 2. [¶]... [¶]
“Mayhem as charged in Count 3. [¶]... [¶]
“For you to find a person guilty of these crimes..., that person must not only commit the prohibited act, but must do so with wrongful intent.
“A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose.
“However, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime....
“The following crime... requires a specific intent or mental state:
“Attempted murder, as charged in Count 1.... For you to find a person guilty of this crimes..., that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime....” (Italics added.)
B. Analysis.
CALCRIM No. 252 is to be given when the defendant is charged with one or more crimes that require general intent, along with one or more crimes that require specific intent. (Bench Notes foll. CALCRIM No. 252 (2009-2010 ed.) p. 73.) Thus, in this case, the trial court used it to instruct that mayhem requires “general criminal intent, ” which it defined as “intentionally do[ing] a prohibited act on purpose.” It also used it to instruct that attempted murder requires “a specific intent or mental state, ” which it defined elsewhere.
Defendant argues that mayhem actually requires a specific intent or mental state, namely malice. He concedes that the jury was instructed that mayhem requires malice (albeit in CALCRIM No. 801, defining mayhem, rather than in CALCRIM No. 252). He argues, however, that it was never specifically instructed that mayhem requires “the union or joint operation” of the prohibited act and malice.
However, as we already discussed (see part III, ante), malice ordinarily refers to general intent, not specific intent. Thus, in CALCRIM No. 252, the trial court properly instructed that mayhem requires general criminal intent. It further properly instructed that mayhem requires the union or joint operation of (1) the prohibited act and (2) the “wrongful intent” of “intentionally do[ing] a prohibited act on purpose.”
Defendant further argues that malice means more than just the general intent of intentionally doing a prohibited act. He quotes the following language from People v. McKelvy, supra, 194 Cal.App.3d 694: “[T]he inclusion of the word ‘maliciously’ in the definition of mayhem clearly requires proof of something more than that the act was done intentionally, wilfully or knowingly. [Citation.]... ‘[M]alice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result.’ [Citations.]” (Id. at p. 702 [lead opn. of Kline, P.J.].)
Once again, however (see part III, ante), McKelvy is neither precedential nor persuasive. Its quoted definition of malice is at odds with the statutory definition of malice in Penal Code section 7. Under the latter, intentionally doing a wrongful act is sufficient to constitute malice. Thus, CALCRIM No. 252, as given in this case, correctly stated the law.
V
THE DEADLY WEAPON USE ENHANCEMENT
Defendant contends that the trial court erred by staying, rather than striking, the deadly weapon personal use enhancement to count 2 (assault with a deadly weapon), because deadly weapon use is an element of the offense.
The People concede the error. We agree. Penal Code section 12022, subdivision (b)(1) provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” (Italics added.) Use of a deadly weapon is an element of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1); People v. McGee (1993) 15 Cal.App.4th 107, 113-116.) Accordingly, a deadly weapon personal use enhancement cannot apply to assault with a deadly weapon. (People v. Summersville (1995) 34 Cal.App.4th 1062, 1069-1070; McGee, at p. 116.)
VI
DISPOSITION
The trial court is directed to modify the judgment so as to strike, rather than stay, the deadly weapon personal use enhancement to count 2. (See part V, ante.) The superior court clerk is directed to prepare a new sentencing minute order and a new abstract of judgment, both reflecting this modification. The superior court clerk is further directed to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P.J., MILLER, J.
“DISPATCH: Is he armed?
“[BRIAN]: I don’t know if he’s armed. Is he armed[?]
“[DEFENDANT]: No, I’m not armed. Oh[, ] wait a minute, I am. No, I’m not....
“[BRIAN]: Dude, you’re fucking armed. You got the knife right in your fucking hand. [¶]... [¶]
“[DEFENDANT]: I don’t have nothing!
“[BRIAN]: [Unintelligible] fucking throw it on the floor.
“[DEFENDANT]: I don’t have nothing.... [¶]... [¶]
“[DEFENDANT]:... That’s not even a weapon. That’s not the weapon! That’s not the weapon! That’s not the weapon! That’s not the weapon!...
“[BRIAN]: Fucking [unintelligible] pocket.”