Opinion
B228433
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. ALVARO RODRIGUEZ, Defendant and Appellant.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputies Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA365703)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Affirmed in part, reversed in part, and remanded.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputies Attorney General, for Plaintiff and Respondent.
Appellant Alvaro Rodriguez appeals his convictions for assault on a peace officer (Pen. Code, § 241, subd. (c) ), battery with injury on a peace officer (§ 243, subd. (c)(2)), and resisting an executive officer by means of threat or violence (§ 69). In his appeal, Rodriguez contends that the trial court committed reversible error by (1) omitting a definition of the term "injury" from its instructions to the jury on the elements of battery with injury on a peace officer, (2) refusing to instruct the jury on the lesser included misdemeanor offense of battery without injury on a peace officer, and (3) failing to dismiss the conviction for simple assault on a peace officer as a lesser included offense of battery on a peace officer. We conclude that the trial court erred in giving an amended version of Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 945 that omitted the definition of the term "injury," and that such instructional error was not harmless beyond a reasonable doubt. We accordingly reverse Rodriguez' conviction for battery with injury on a peace officer, and remand the matter to the trial court for further proceedings consistent with this opinion.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Charges
In an amended information, the Los Angeles County District Attorney charged Rodriguez with one count of assault on a peace officer by force likely to produce great bodily injury (§ 245, subd. (c)), one count of battery with injury on a peace officer (§ 243, subd. (c)(2)), and two counts of resisting an executive officer by means of threat or violence (§ 69). It was further alleged that, with respect to the assault count and one of the resisting arrest counts, Rodriguez personally inflicted great bodily injury on a peace officer within the meaning of section 12022.7, subdivision (a). Rodriguez pleaded not guilty to all charges and denied the special allegations.
II. Prosecution Evidence
On May 17, 2009, Charin Tolentino was working as a nurse assistant at the inmate reception center of a county jail where she was responsible for distributing medication to designated inmates. Rodriguez, an inmate at the jail, appeared upset as he approached Tolentino. He told her in a loud voice that he no longer wanted a pill because his leg felt better. When Tolentino asked Rodriguez for his name and booking number, he placed his hands on her pill cart and leaned toward her. At that point, Rodriguez was standing approximately one foot from Tolentino, causing her to feel very uncomfortable. Tolentino asked Rodriguez to step back so that she could look at the laptop computer on her pill cart. Rodriguez took one step back, but continued to speak loudly with his hands raised. He then began flailing his arms in the direction of the nursing staff and screaming that he should not be there because the court had released him.
Los Angeles County Sheriff's Deputy Eduardo Sanchez was standing behind Tolentino and providing security for the nursing staff. He instructed Rodriguez to stop screaming and to place his hands in his pockets. When Rodriguez refused to comply, Deputy Sanchez approached him. Rodriguez assumed a fighting stance and attempted to punch Deputy Sanchez with a "full-on swing." Deputy Sanchez averted the punch by moving to the side. He then positioned himself behind Rodriguez and grabbed his upper torso. In response, Rodriguez dug his nails across Deputy Sanchez' forearms. He also grabbed the deputy's right thumb and pulled it back toward his elbow. Deputy Sanchez used his body weight to force Rodriguez to the ground. Once on the ground, he attempted to restrain Rodriguez by handcuffing him, but Rodriguez continued to flail his arms and kick his legs in the deputy's direction.
Los Angeles County Sheriff's Deputy Chad Wagner attempted to assist Deputy Sanchez on the ground by controlling Rodriguez' arms. Rodriguez continued to actively resist the deputies by swinging his arms and kicking his legs in their direction. While on the ground, Deputy Sanchez punched Rodriguez once in the head with his right hand. Deputies Sanchez and Wagner also repeatedly ordered Rodriguez to stop fighting, but Rodriguez refused. Shortly thereafter, two other deputies arrived, one of whom carried a taser. When one of the deputies threatened Rodriguez with the taser if he continued to resist, Rodriguez stopped fighting and was arrested.
During the altercation, Deputy Sanchez sustained injuries to his thumb and arms. As described by Deputy Sanchez at trial, Rodriguez injured the deputy's right thumb when he grabbed and pulled it back toward the deputy's elbow. As a result, the thumb was swollen and Deputy Sanchez could not move it. On a pain scale of one to 10, Deputy Sanchez rated the pain in his thumb at the time of the injury as a six or seven. Rodriguez also scratched Deputy Sanchez' forearms during the altercation when he dug his nails across them, with the majority of the scratches occurring on the right arm. The scratches broke the skin such that they bled and took approximately two weeks to heal. On cross-examination, Deputy Sanchez acknowledged that it was "possible" his thumb was injured when he punched Rodriguez in the head, but asserted that it was "not likely." He further testified that the only time during the altercation that he felt any pain in his thumb was when Rodriguez grabbed and pulled it back.
Deputy Sanchez went to U.S. Healthworks about an hour after the incident where he received treatment for his injuries. For his scratches, he was given a bandage and dressing. For his thumb, he was given a splint, antibiotics, and several pain medications, including Vicodin and Tylenol. He also had at least two x-rays taken of the thumb area. Deputy Sanchez made a total of four visits to a general physician and three visits to a specialist for his thumb injury. As a result of the injury, he missed a month of work because he was unable to operate a firearm. At the time of trial, which occurred 16 months after the altercation, Deputy Sanchez' thumb was still stiff and would hurt when he gripped a gun.
III. Defense Evidence
Rodriguez testified on his own behalf. According to Rodriguez, on May 17, 2009, he attempted to have a nurse at the jail examine his leg, which had been injured in an earlier biking accident and was showing signs of infection. He placed his foot on a nearby chair to show the nurse his wound and complied when she told him to remove it. He did not use his hands to threaten the nurses nor was he aggressive with them in any way. After speaking to the nursing staff, Rodriguez told Deputy Sanchez that he was supposed to have been released because he had served his time. In response, Deputy Sanchez ordered Rodriguez to "shut the fuck up" as he began walking toward him. Rodriguez removed his glasses and placed both hands at his sides. Without provocation, Deputy Sanchez grabbed Rodriguez by his neck and threw him to the ground. Once on the ground, Deputy Sanchez hit Rodriguez with a closed fist three times. Rodriguez struggled to breathe during the attack, and in an act of self-defense, he scratched Deputy Sanchez, but did not grab or bend his thumb. Rodriguez was grateful when other deputies arrived on the scene and stopped the altercation.
On cross-examination, Rodriguez admitted that he had multiple prior convictions for misdemeanor crimes involving moral turpitude. He explained that he was "not the most honest" person, but was "not that bad either." Rodriguez initially denied that Deputy Sanchez ever instructed him to put his hands in his pockets, but later admitted that Deputy Sanchez did give him such an order and that he refused to comply because he wanted to ask the deputy why he had not been released. Rodriguez denied that he ever swung his arms at the deputies or flailed his legs on the ground to avoid being handcuffed. Rodriguez admitted that he scratched Deputy Sanchez during the altercation, but insisted that he never touched the deputy's thumb.
IV. Verdict and Sentencing
At the conclusion of the trial, the jury reached a verdict on all counts. On count 1, the jury found Rodriguez not guilty of the charged offense of assault on a peace officer with force likely to cause great bodily injury, but guilty of the lesser included offense of simple assault on a peace officer. On count 2, the jury found Rodriguez guilty of the charged offense of battery with injury on a peace officer. On counts 3 and 4, the jury found Rodriguez guilty of the charged offense of resisting an executive officer by means of threat or violence with respect to Deputy Sanchez, but not guilty of the same offense with respect to Deputy Wagner. The jury found the special allegation that Rodriguez personally inflicted great bodily injury on Deputy Sanchez in the resisting arrest count to not be true.
Following the verdict, trial court sentenced Rodriguez to two years in state prison on the count of battery with injury on a peace officer. The trial court stayed the sentence on the two remaining counts pursuant to section 654. Rodriguez filed a timely notice of appeal.
DISCUSSION
I. Battery With Injury On A Peace Officer
On appeal, Rodriguez argues that the trial court erred in instructing the jury on the elements of battery with injury on a peace officer by failing to define the term "injury." He further asserts that such instructional error requires reversal of his conviction on the battery count because it was not harmless beyond a reasonable doubt. We agree.
A. The trial court instructed the jury with an amended version of CALCRIM No. 945 that omitted the definition of "injury."
Rodriguez was charged with one count of battery with injury on a peace officer in violation of section 243, subdivision (c)(2), a felony offense. As to that count, the trial court instructed the jury with an amended version of CALCRIM No. 945 as follows:
Section 243, subdivision (c), states in pertinent part:
(1) When a battery is committed against [specified nonpeace officers and employees], . . . and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.
(2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, . . . the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment.
"The defendant is charged in count 2 with battery against a peace officer, in violation of Penal Code section 243.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. Eduardo Sanchez was a peace officer performing his duties of deputy sheriff.
"2. The defendant willfully and unlawfully touched Deputy Sanchez in a harmful or offensive manner causing injury.
"3. When the defendant acted, he knew or reasonably should have known that Eduardo Sanchez was a peace officer who was performing his duties. [¶] AND
"4. The defendant did not act in self-defense.
"Someone commits an act willfully when he or she does it willingly or on purpose. It's not required that he or she intend to break the law, hurt someone else, or gain any advantage. The slightest touching can be enough to commit a battery if it's done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough.
"A person employed as a peace officer by Los Angeles County Sheriff's Department is a peace officer.
"A peace officer is not lawfully performing his or her duties if he or she is using reasonable [sic] or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive."
The Judicial Council of California Criminal Jury Instructions state that when instructing the jury on felony battery against a peace officer, the following definition should be included with CALCRIM No. 945: "An injury is any physical injury that requires professional medical treatment. The question whether an injury requires such treatment cannot be answered simply by deciding whether or not a person sought or received treatment. You may consider those facts, but you must decide this question based on the nature, extent, and seriousness of the injury itself." (See CALCRIM No. 945.) As reflected above, the version of CALCRIM No. 945 given by the trial court in this case did not include a definition of the term "injury."
The Judicial Council of California Criminal Jury Instructions further provide that the following paragraph should be omitted from CALCRIM No. 945 when instructing on felony battery against a peace officer: "The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind." (See CALCRIM No. 945.) The version of the instruction given by the trial court only omitted the last sentence of the above paragraph and retained the rest. At trial, defense counsel did not request that the trial court include a definition of "injury" in the jury instructions, nor raise any other objection to the version of CALCRIM No. 945 given.
B. The trial court had a sua sponte duty to define the term "injury" in instructing the jury with CALCRIM No. 945.
In a criminal case, "[a] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 744-745.) "In the absence of a specific request, a court is not required to instruct the jury with respect to words or phrases that are commonly understood and not used in a technical or legal sense. [Citation.]" (People v. Navarette (2003) 30 Cal.4th 458, 503.) A court does have a sua sponte duty, however, "to define terms that have a technical meaning peculiar to the law. [Citations.]" (People v. Bland (2002) 28 Cal.4th 313, 334.) "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus, . . . terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. [Citation.]" (People v. Estrada (1995) 11 Cal.4th 568, 574-575.)
Section 243 defines "injury" for purposes of the statute as "any physical injury which requires professional medical treatment." (§ 243, subd. (f)(5).) This Court has interpreted section 243's definition of "injury" as "measur[ing] culpability by the seriousness of the inflicted injury." (In re Michael P. (1996) 50 Cal.App.4th 1525, 1529.) As we also explained in People v. Longoria (1995) 34 Cal.App.4th 12, 17: "What the statute prescribes as a qualifying injury is an injury which 'requires professional medical treatment.' It is the nature, extent, and seriousness of the injury -- not the inclination or disinclination of the victim to seek medical treatment -- which is determinative. A peace officer who obtains 'medical treatment' when none is required, has not sustained an 'injury' within the meaning of section 243, subdivision (c). And a peace officer who does not obtain 'medical treatment' when such treatment is required, has sustained an 'injury' within the meaning of section 243, subdivision (c). The test is objective and factual." CALCRIM No. 945 incorporates this interpretation of "injury."
In this case, we conclude that the term "injury," as used in the context of a section 243 violation, has a legal meaning that "differs from the meaning that might be ascribed to the same terms in common parlance." (People v. Estrada, supra, 11 Cal.4th at p. 575.) To qualify as an "injury" under the statute, it must be the type of injury that would require professional medical treatment even if no such treatment was sought, and cannot be the type of injury for which treatment was sought if none was required. A jury thus must consider "the nature, extent, and seriousness of the injury" in determining whether it constitutes a qualifying injury for purposes of section 243. (People v. Longoria, supra, 34 Cal.App.4th at p. 17.) Absent an instruction on the applicable legal standard, a jury might regard any injury as a qualifying injury regardless of its seriousness, or assume that there has been a qualifying injury so long as medical treatment was actually received. Because the term "injury" has a specific legal meaning under section 243, the trial court had a sua sponte duty to give an amplifying or clarifying instruction defining the term.
Furthermore, the trial court's failure to define the term "injury" was particularly problematic in this case given its other instructions on the battery count. In instructing the jury with an amended version of CALCRIM No. 945, the trial court also failed to omit the full paragraph on touching as a form of battery, and instead stated that the "slightest touching can be enough to commit a battery if it is done in a rude or angry way," and that "[m]aking contact with another person, including through his or her clothing, is enough." As the Judicial Council of California Criminal Jury Instructions provide, this entire paragraph should be omitted from CALCRIM No. 945 when instructing on felony battery because the "slightest touching" or "making contact" would not be sufficient to show an injury. (See CALCRIM No. 945.) Based on the instructions given by the trial court, however, the jury may have mistakenly believed that any improper touching of, or contact with, Deputy Sanchez during the altercation constituted a qualifying injury under section 243. The trial court therefore erred in omitting a definition of "injury" from its instructions on the elements of battery with injury on a peace officer.
C. The trial court's instructional error in failing to define the term "injury" requires reversal of the battery conviction.
"An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if 'it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."' [Citation.] 'To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 774; see also People v. Lamas (2007) 42 Cal.4th 516, 526 ["An instructional error that improperly describes or omits an element of the crime from the jury's consideration is subject to the 'harmless error' standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24."].) In considering the error, "[w]e must determine '". . . whether the evidence eliminates any reasonable doubt that a defendant would have been convicted under proper instructions." [Citation.]' [Citation.]" (People v. Ryan (1999) 76 Cal.App.4th 1304, 1320-1321.) "[W]here the defendant contested the omitted element and raised evidence sufficient to support a contrary finding" at trial, the error requires reversal. (Neder v. United States (1999) 527 U.S. 1, 19.) In this case, we conclude that the trial court's instructional error in omitting a definition of "injury" was not harmless beyond a reasonable doubt.
At trial, the prosecution presented evidence that Rodriguez inflicted two injuries on Deputy Sanchez: (1) Rodriguez injured the deputy's thumb by pulling it back toward his elbow; and (2) Rodriguez injured the deputy's forearms by scratching them with his nails. With respect to the thumb injury, Deputy Sanchez testified that his thumb was swollen and immobile, was a six or seven on a pain scale of one to 10, and was treated by professional medical personnel with a splint, antibiotics, pain medications, multiple x-rays, and seven visits to a physician including three to a specialist. Deputy Sanchez also testified that the thumb injury significantly interfered with his ability to perform his job duties by causing him to miss a month of work, and that he still suffered pain and stiffness in his thumb when gripping a gun. At trial, the defense did not challenge the evidence concerning the severity of the thumb injury, and there is no dispute on appeal that the thumb injury, if inflicted by Rodriguez, is a qualifying injury under section 243. On the other hand, the defense did contest the evidence that Rodriguez actually inflicted the injury, as Rodriguez repeatedly denied during his trial testimony that he ever touched the deputy's thumb. Additionally, Deputy Sanchez himself acknowledged on cross-examination that it was possible he injured his thumb when he punched Rodriguez in the head, and not when Rodriguez grabbed and pulled his thumb. Given this conflict in the evidence about the exact cause of Deputy Sanchez' injured thumb, we cannot say beyond a reasonable doubt that the jury relied on this injury in reaching its verdict on the battery count.
The other testifying witnesses corroborated Deputy Sanchez' account at trial that Rodriguez was loud and aggressive prior to the altercation, refused to comply with the deputy's orders to place his hands inside his pockets, and actively resisted the deputy's attempts to restrain him by flailing his arms and legs. The witnesses did not, however, offer any testimony about the nature, extent, or severity of Deputy Sanchez' thumb injury.
With respect to the scratched forearms, Deputy Sanchez testified that the scratches broke the skin such that they bled and took approximately two weeks to heal. He also testified that the scratches were treated by professional medical personnel with a bandage and dressing. At trial, Rodriguez admitted that he scratched Deputy Sanchez during the altercation, and hence, unlike the injured thumb, the cause of the deputy's scratched arms was not in dispute. However, we cannot conclude from the record before us that had the jury been instructed on the statutory definition of "injury," it would have found that the scratches qualified as an injury under section 243. The prosecution presented limited evidence about the nature, extent, and severity of the scratches. Deputy Sanchez' testimony was simply that the scratches bled and took two weeks to heal. Although it is undisputed that the deputy received professional medical treatment for the scratches in the form of a bandage and dressing, the relevant inquiry is whether such treatment was objectively required, not whether it was actually obtained. While a properly instructed jury rationally could have found that the scratches constituted an "injury" within the meaning of section 243, a contrary conclusion based on the evidence presented also would have been reasonable.
In addition to the trial court's instructional error, the prosecution's closing argument increased the potential for jury confusion as to the meaning of the term "injury." In addressing the jury on the charge of battery with injury on a peace officer, the prosecution stated: "Count 2 is a little bit different. This just requires any injury. It doesn't matter whether it's by means likely to produce great bodily injury, just any injury is count 2. Okay. So by scratching, for example. Right? That would qualify for the thumb. Any injury to the deputy's arm would qualify in count 2." We do not agree with Rodriguez' characterization of this argument as limiting the People's theory of the injury supporting the battery count to the scratches alone. To the contrary, the prosecution mentioned both the scratches and the thumb in arguing that that was an injury. We do agree, however, that the prosecution incorrectly suggested to the jury that any injury, regardless of its seriousness or need for professional medical treatment, was sufficient to support a conviction on the battery count. Absent an instruction clarifying the statutory definition of the term, the jury may have assumed that it did not need to decide whether a qualifying injury, as opposed to any injury, had occurred.
The Attorney General asserts that the jurors obviously understood their duty to determine whether a qualifying injury occurred, as they found the great bodily injury allegations on the assault and resisting arrest counts to not be true. The jury's rejection of these allegations could mean that it found Deputy Sanchez' thumb injury was not significant to constitute a great bodily injury. Alternatively, it could reflect that the jury found the prosecution failed to prove beyond a reasonable doubt that Rodriguez actually caused the injury. As discussed, if the jury believed the thumb injury was not caused by Rodriguez, then the only injury that would remain to support the battery count would be the scratches, which a properly instructed jury rationally could have found were not serious enough to require professional medical treatment. Under these circumstances, we cannot say beyond a reasonable doubt that the trial court's instructional error in failing to define the term "injury" did not contribute to the jury's guilty verdict on the battery count. We accordingly must reverse Rodriguez' conviction for battery with injury on a peace officer in violation of section 243, subdivision (c)(2).
In light our conclusion that the trial court committed reversible error with respect to the battery count by failing to sua sponte define the term "injury, we need not address Rodriguez' argument that the trial court also erred in refusing to instruct the jury on the lesser included misdemeanor offense of battery without injury on a peace officer.
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"When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 528.) If, after the filing of the remittitur in the trial court, the People do not bring Rodriguez to retrial within the time limit of section 1382, subdivision (a)(2) on the charged offense of battery with injury on a peace officer, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of the lesser included misdemeanor offense of battery without injury on a peace officer, and shall resentence Rodriguez accordingly. (People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Hayes (2006) 142 Cal.App.4th 175, 184; People v. Woods (1992) 8 Cal.App.4th 1570, 1596.)
II. Simple Assault On A Peace Officer
On appeal, Rodriguez contends, and the Attorney General concedes, that the trial court also erred in failing to dismiss his conviction for simple assault on a peace officer as a lesser included offense of battery on a peace officer. As the parties note, "multiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct. [Citations.]" (People v. Lewis (2008) 43 Cal.4th 415, 518.) It is settled that simple assault is a lesser included offense of battery. (See People v. Ortega (1998) 19 Cal.4th 686, 692 ["A defendant who commits a battery may not be convicted of both battery and assault. . . ."]; People v. Colantuono (1994) 7 Cal.4th 206, 216-217 ["'An assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.'"].) Because the assault and battery charges were based on the altercation with Deputy Sanchez, Rodriguez may not be convicted of both crimes.
Therefore, if the People elect to retry Rodriguez on the charged offense of battery with injury on a peace officer, then the conviction for simple assault on a peace officer must be dismissed if Rodriguez is convicted of battery, whether felony or misdemeanor, and must stand if Rodriguez is acquitted. If the People do not retry Rodriguez and instead accept a reduction to the lesser included offense of misdemeanor battery without injury on a peace officer, then the assault conviction must be dismissed.
DISPOSITION
The conviction in count 2 for battery with injury on a peace officer in violation of section 243, subdivision (c)(2) is reversed. If, after the filing of the remittitur in the trial court, the People bring Rodriguez to retrial within the time limit of section 1382, subdivision (a)(2) on the charged offense of battery with injury on a peace officer and Rodriguez is convicted of felony or misdemeanor battery, then the trial court shall dismiss the conviction in count 1 for simple assault on a peace officer. If Rodriguez is acquitted of battery on retrial, the assault conviction shall stand. If the People do not bring Rodriguez to retrial within the time limit of section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction in count 2 for the lesser included misdemeanor offense of battery without injury on a peace officer in violation of section 243, subdivision (b), shall dismiss the conviction in count 1 for simple assault on a peace officer, and shall resentence Rodriguez accordingly. In all other respects, the judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
WOODS, J.