Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA338854. Lance A. Ito, Judge. Reversed in part; affirmed in part.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Nilson E. Flores was convicted, following a jury trial, of one count of corporal injury to a spouse/cohabitant in violation of Penal Code section 273.5, subdivision (a) and one count of vandalism under $400 in violation of section 594, subdivision (a). The jury also convicted appellant of one count of assault, a lesser included offense of the charged offense of assault with intent to commit rape in violation of section 220, subdivision (a). Appellant admitted that he had suffered a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to the middle term of three years for the corporal injury conviction, doubled to six years pursuant to the Three Strikes law. The court also imposed two concurrent six months terms for the remaining two convictions, both misdemeanors.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending he was wrongly convicted of assault in count 3 because that offense is a lesser included offense of the corporal injury conviction in count 1. He also contends the trial court violated section 654 by imposing separate sentences for the two misdemeanor convictions. We agree that the assault conviction must be reversed. The judgment of conviction is affirmed in all other respects.
Facts
From 2002 to 2005, appellant and Astrid P. lived together. After that time, they continued to date, but appellant lived at his mother's house in Los Angeles. Appellant's sister Vivian and her children also lived there.
On March 15, 2008, Astrid went to appellant's house to hang out. Appellant and Astrid drank beer and played video games for several hours. Vivian and her children were home, but went into Vivian's room at some point.
Appellant asked Astrid if she would like to have sex. Astrid, who felt intoxicated, agreed. The two went into appellant's room, sat on his couch and began kissing. Astrid said that she wanted to talk about their relationship. She then decided that she did not want to have sex. Appellant left the room.
Astrid gathered up her belongings and started to leave. Appellant was in the hallway. He picked her up, carried her back to his couch, closed the door and turned off the lights. He tried to kiss her, but Astrid told him to stop and that she did not want to have sex. Appellant climbed on top of her and tried to pull her underwear down. Astrid pushed him and told him to stop. Appellant began to choke her. She tried to defend herself by pushing and hitting appellant. She gave him a bloody nose.
Astrid screamed and said that she wanted to leave. Appellant turned on the lights but blocked the door. Astrid screamed for Vivian. Vivian came to the door. Astrid told Vivian that appellant had tried to force himself on her. Astrid was able to gather up her belongings and leave the house.
Appellant followed Astrid to her car and punched out the tail lights. Astrid drove to a gas station and called her brother. He came and got her and later called the police.
Appellant testified in his own behalf at trial. He said that while he was kissing Astrid in his bedroom, she said that she wanted to talk about their relationship. He continued to kiss her and tried to pull down her underwear, but she was angry and so he stopped. They talked for a while. He choked her a "little bit." Astrid said that he was hurting her and punched him in the nose. Appellant turned on the lights and called Vivian.
Discussion
1. Count 3 assault
Appellant contends that assault is a lesser included offense of corporal injury and that since he was convicted of corporal injury his conviction for the lesser offense of assault cannot stand. We agree.
Assault is a lesser included offense of corporal injury in violation of section 273.5. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 citing People v. Van Os (1950) 96 Cal.App.2d 204.) The reason for this is simple. Section 273.5 is a battery offense, and assault is a necessary element of battery. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1053; cf. People v. Colantuono (1994) 7 Cal.4th 206, 216; see also People v. Jackson (2000) 77 Cal.App.4th 574, 580 [section 273.5 is "a very particular battery"].)
If a jury returns a conviction on both a greater and lesser offense, the lesser offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.) The situation here is somewhat unusual because the lesser offense is in a separate count from the greater offense, due to the prosecutor's initial decision to charge appellant with two separate offenses for his attack on Astrid: assault with intent to commit rape and infliction of corporal injury on a cohabitant. Ultimately, however, the jury convicted appellant of one count of infliction of corporal injury and one count of assault, a lesser included offense of infliction of corporal injury, both based on the same attack on Astrid.
"It is well established... that the prosecutor's method of charging a defendant does not affect a defendant's double jeopardy rights. [Citations.] 'The prosecution cannot avoid the consequences of a conviction of a necessarily included offense by charging the included offense in a separate count, on the theory that a conviction under such circumstances constitutes a conviction of a separate offense.' [Citation.]" (People v. Fields (1996) 13 Cal.4th 289, 308.)
2. Section 654
Because we have reversed appellant's conviction for assault, we do reach his claim that the concurrent sentence for assault violated section 654.
Disposition
Appellant's conviction for assault is reversed. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J. MOSK, J.