Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA057600. Lisa B. Lench, Judge.
A. William Bartz, Jr., under appointment by the Court of Appeal; Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Norberto Arredondo appeals from the judgment following his conviction for assault with a deadly weapon or by means likely to cause great bodily injury. Upon review, we dismiss a one-year sentence enhancement and otherwise affirm.
FACTS AND PROCEEDINGS
Victim Mau Tran was walking home from work around midnight one evening in 2004. As he walked down the street where appellant Norberto Arredondo lived, he heard loud music coming from appellant’s house across the street and saw appellant standing on his lawn yelling something unintelligible to Tran. Crossing to Tran’s side of the street, appellant passed behind Tran and came up behind him. Sensing someone to his rear, Tran turned around to see appellant standing a few feet away. Holding a can of beer, appellant asked, “What are you looking at?” and pushed Tran backward. Telling appellant he was drunk, Tran said he was going to call the police. The next thing Tran knew, he was lying on the ground flat on his back as appellant straddled him and punched him in the face.
Appellant’s neighbors heard Tran cry for help and called 911. The police arrived and found Tran covered in blood. Tran directed officers to appellant’s house across the street. When police questioned appellant, he claimed he had been eating dinner and denied having been in a fight. Under repeated questioning, appellant changed his story, however, and said he had been in his bedroom trying to sleep. Tran identified appellant as his assailant and the police arrested him.
Paramedics took Tran to the hospital. Tran’s left eye was swollen shut and he received six stitches to his lip. Because of his injuries, Tran felt dizzy for the next two weeks, lost his appetite, had trouble sleeping and walking, and missed work. At the end of two weeks, his left eye was still red.
The People charged appellant with assault with a deadly weapon by means likely to produce great bodily injury. Appellant pleaded not guilty. A jury convicted appellant as charged and found he had personally inflicted great bodily injury. The court sentenced appellant to eight years in state prison, consisting of a mid-term sentence of three years, plus three years for great bodily injury, and two years for two prior prison terms.
The People also charged appellant with misdemeanor obstructing a police officer to which he pleaded guilty. That conviction is not at issue in this appeal.
Appellant filed a notice of appeal and we appointed attorney Alan Stern to represent him. Stern filed a brief under People v. Wende (1979) 25 Cal.3d 436, stating he could not find any appealable issues. The clerk of this court sent a letter to appellant telling him Stern had found no arguable issues on appeal, and inviting appellant to file a brief or letter if there were any issues he wished this court to consider. Appellant filed in pro per a supplemental opening brief in which he contended the trial court misinstructed the jury on assault and assault with a deadly weapon, and missentenced him with one too many prior prison term sentence enhancements.
After reading appellant’s pro per brief, we asked attorney Stern whether he wished to file a supplemental opening brief taking up and developing appellant’s contentions. Before Stern filed such a brief, appellant filed in April 2006 a petition for habeas corpus alleging ineffective assistance of trial counsel for counsel’s failing to interview, let alone not calling to testify, certain defense witnesses who claimed they could establish appellant’s innocence. In the interest of judicial efficiency, we extended the briefing schedule and ordered Stern and the Attorney General to discuss in their briefs appellant’s claim of ineffective assistance of counsel.
Following oral argument in the habeas action, we placed the direct appeal in abeyance and remanded the habeas proceeding to the superior court. We directed the superior court to hold an evidentiary hearing exploring the reasons trial counsel did not call witnesses appellant had identified. On the day set for the hearing in the trial court, appellant moved to take the matter off calendar. Several days later, he asked that we dismiss his petition. We did so and directed him to tell us whether he wished to proceed with his direct appeal. With Stern’s concurrence, appellant asked that we relieve Stern as counsel. We agreed and appointed in his place the attorney who had represented appellant in the habeas proceedings, A. William Bartz, Jr. After his appointment, attorney Bartz informed us that appellant stood on the briefs already on file in his appeal and did not intend to submit further briefing.
DISCUSSION
1. Substantial Evidence Supports Conviction of Assault by Means Likely to Cause Great Bodily Injury
The People charged appellant with assault with a deadly weapon or by use of force likely to produce great bodily injury. Appellant correctly notes that fists are not deadly weapons under the assault statute. (People v. Aguilar (1997) 16 Cal.4th 1023, 1034 (Aguilar).) He concludes that his conviction for assault with a deadly weapon or by means likely to produce great bodily injury was thus improper. His contention fails, however, because the offense can be committed either with a deadly weapon or by means likely to produce great bodily injury. (Id. at p. 1028.) Bare hands can inflict great injury, and the court so instructed the jury; it did not instruct the jury that hands are themselves deadly weapons. Appellant asserts his conviction rests on the jury miscasting his fists as deadly weapons. Appellant’s jury found, however, that he inflicted great bodily injury on Tran when he assaulted him. Accordingly, appellant stands properly convicted of assault by means likely to produce great bodily injury. (See Aguilar, at p. 1034 [harmless error to give deadly weapon instruction when hands produced great bodily injury].)
Appellant asserts that the charging information alleged only assault with a deadly weapon, and did not allege the alternative assault by means of force likely to produce great bodily injury. In fact, the information alleged both, stating appellant committed “assault with a deadly weapon, by means likely to produce GBI” when he “commit[ted] an assault upon Mau Tran with a deadly weapon, to wit, fist, and by means of force likely to produce great bodily injury.” Regardless of whether the information misapprehended the law in describing appellant’s fists as a deadly weapon, the court’s instructions to the jury made no such mistake. Defining assault, the court instructed the jury that “An assault by means likely to produce great bodily injury may be committed with the hands or fists.” The court did not tell the jury that hands or fists were deadly weapons, and defendant raised no objection to the properly worded great bodily injury instruction and requested no pinpoint instruction clarifying the instruction if he thought clarification were necessary. The prosecutor’s closing jury argument further reduced any chance of jury confusion. The prosecutor emphasized the severity of Tran’s injuries in urging the jury to convict appellant of assault by means likely to produce great bodily injury, and never argued fists were deadly weapons. And finally, to the extent the verdict form may have imprudently tracked the charging information by incorrectly identifying appellant’s fists as a deadly weapon, the form’s misstatement helped appellant because it required the prosecution to prove both Tran’s serious bodily injury and the means (appellant’s fists) by which Tran suffered it. A more carefully worded verdict form that stated only what the prosecution needed to prove would have omitted the reference to a deadly weapon and focused on the People’s theory at trial that appellant had violated section 245, subdivision (a)(1) by inflicting great bodily injury on Tran; the less carefully worded form worked to appellant’s advantage and was therefore harmless.
2. Simple Assault as a Lesser Included Offense
Appellant contends the court erred by not instructing on simple assault as a lesser included offense of assault with a deadly weapon or by means likely to produce great bodily injury. Appellant’s contention is unavailing. The court instructed the jury with the legal definition of “assault,” a definition the jury needed in order to understand the charged offense. A trial court has no duty to instruct on a lesser offense if no evidence exists that the charged crime was, if a crime at all, nothing less than the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) The court did not instruct on simple assault as a lesser included offense because the court correctly concluded no substantial evidence supported simple assault. It noted that if appellant had committed any crime against Tran, Tran’s severe injuries meant the crime was assault by means likely to produce great bodily injury.
Appellant raised this issue in the supplemental letter brief he filed in pro per. In addition, appellant also appears simultaneously to complain that the court erred by instructing the jury, over the prosecutor’s and defense counsel’s objections, on simple assault as a lesser included offense to assault with a deadly weapon. Appellant’s court appointed counsel has not discussed the issues, relying instead on the letter brief to support appellant’s points. Generally, courts do not consider arguments made in pro per by a party represented by counsel, but we will consider them here. (In re Barnett (2003) 31 Cal.4th 466, 469; People v. Mattson (1959) 51 Cal.2d 777, 789.)
3. Only One Sentence Enhancement Was Authorized
Appellant was convicted of stalking in 1996 and sentenced to three years in state prison, but execution of his sentence was stayed or suspended and he was placed on probation. In 1998, he was convicted of spousal abuse. For that offense he was sentenced to three years in state prison, and probation for his stalking conviction was revoked. The sentencing court remanded appellant to state prison to serve the sentences concurrently, and he was released from prison in January 2004. Based on those convictions, the court imposed two one-year sentence enhancements for prior prison terms. (Pen. Code, § 667.5.) Appellant contends the court erred because he served only one term for the two offenses. Respondent agrees with appellant that the court should have imposed only one enhancement because appellant served the two terms concurrently. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Cardenas (1987) 192 Cal.App.3d 51, 56; Pen. Code, § 667.5, subd. (g)) We shall therefore dismiss one of the prior prison term sentence enhancements.
Appellant’s opening brief on appeal also contains an ineffective assistance of counsel argument. Since the point was expressly raised only in the context of the habeas petition which was thereafter dismissed, we do not address ineffective assistance of counsel here.
DISPOSITION
The clerk of the superior court is ordered to amend the abstract of judgment to reflect imposition of only one prior prison term enhancement under Penal Code section 667.5 and to forward a copy of the amended judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.