Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA313911, Jose I. Sandoval, Judge.
James Koester, under appointment by the Court of Appeal, and Law Offices of James Koester for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Eutimio Salvador appeals from the judgment entered following a jury trial in which he was convicted of felony assault by means of force likely to produce great bodily injury and misdemeanor battery. He also admitted having suffered three prior felony convictions, one of which qualified under the “Three Strikes” law and two of which resulted in separate prison terms. Defendant contends that the trial court prejudicially erred in granting the prosecutor’s mid-trial request to instruct the jury on aggravated assault as a lesser included offense of attempted robbery and that the abstract of judgment should be corrected to reflect the correct theory of aggravated assault. We reverse the conviction of aggravated assault with directions to dismiss it and strike its associated enhancements, and affirm the conviction of misdemeanor battery.
BACKGROUND
Jose Gonzalez testified that on the evening of December 10, 2006, he was walking near the intersection of 8th Street and Oxford Avenue in Los Angeles wearing a zippered jacket when he was approached by defendant and two other men. Defendant’s breath had the odor of alcohol. Defendant asked Gonzalez what gang he belonged to and Gonzalez replied he did not belong to a gang. Defendant also told Gonzalez to hand over the jacket. When Gonzalez refused, defendant punched him in the mouth, causing a laceration on Gonzalez’s lip. Defendant and this cohorts next tried to unzip Gonzalez’s jacket and take it off him. A police car soon drove by, Gonzalez flagged it down, and defendant and his two cohorts fled. Officers apprehended defendant (but not the other two) and Gonzalez identified defendant at the scene.
Testifying in his own defense, defendant said he had been drinking and bumped into Gonzalez, who was walking in the opposite direction. When Gonzalez kept walking, defendant felt disrespected and pushed Gonzalez. Defendant also grabbed Gonzalez by his jacket and asked Gonzalez what his problem was. Defendant explained that in pushing Gonzalez, Gonzalez “moved and then I guess I hit him in the chin.” Defendant denied having demanded Gonzalez’s jacket or having had any intention of taking it.
Defendant was found not guilty of attempted robbery, but guilty of aggravated assault and misdemeanor battery. At sentencing, defendant’s requests to declare the aggravated assault a misdemeanor and to dismiss his strike conviction in furtherance of justice were rejected. He was sentenced to the lower term of two years for aggravated assault (Pen. Code, § 245, subd. (a)(1); count 2), doubled under the Three Strikes law to four years (id., § 1170.12), and one year for each of the two prior convictions on which he had served a prison term (id., § 667.5, subd. (a)). A concurrent six-month term was imposed for misdemeanor battery (Pen. Code, § 242; count 3), for an aggregate sentence of six years in state prison.
DISCUSSION
The information on which defendant went to trial alleged a single count of attempted robbery. After the prosecution had rested its case, defendant testified and admitted on direct examination that he hit Gonzalez during the encounter. When the court reconvened after a break in defendant’s direct examination, the prosecutor requested that the information be amended to allege aggravated assault by means of force likely to produce great bodily injury, arguing that sufficient evidence of that offense had been adduced at the preliminary hearing to put defendant on notice that he might have to defend against it. The prosecutor alternatively requested that the jury be instructed on aggravated assault as a lesser included offense of attempted robbery and on misdemeanor battery.
For sentencing purposes, aggravated assault is a greater offense than attempted robbery. The triad for aggravated assault is two, three, or four years in state prison. (Pen. Code, § 245, subd. (a)(1).) For second degree attempted robbery as alleged here, the triad is 16 months, two, or three years in state prison. (Pen. Code, §§ 664/213, subd. (a)(2), 18; People v. Moody (2002) 96 Cal.App.4th 987, 990.)
Defense counsel stated that he had no objection to a battery instruction, but argued that aggravated assault is not a lesser included offense of attempted robbery and that amendment of the information would be “untimely and unfair to the defense” because had assault been charged before trial, “[w]e may not have proffered this defense. It may have been an I.D. defense.”
The record establishes that defendant was developing two related lines of defense. One, which has been noted above, was defendant’s denial of having attempted to take Gonzalez’s jacket. The other was noted during defense counsel’s cross-examination of Gonzalez regarding the odor of alcohol on defendant’s breath. At sidebar, counsel noted that, unlike the general intent crimes of assault and battery, robbery requires a specific intent.
Following the argument of counsel, the court decided that it would not allow amendment. Nevertheless, over defense objection, it instructed the jury on both aggravated assault and misdemeanor battery as lesser included offenses. We conclude that, in so doing, the trial court prejudicially erred with respect to the aggravated assault instructions.
The Attorney General concedes that aggravated assault is not a lesser included offense of attempted robbery under both the statutory elements and the accusatory pleading test, and that the trial court therefore erred in instructing the jury on that basis. (See People v. Wright (1996) 52 Cal.App.4th 203, 208–210.) But relying on the doctrine that that a legally valid ruling will not be overturned on appeal even if based on an invalid reason (People v. Brown (2004) 33 Cal.4th 892, 901), the Attorney General argues that the trial court had discretion to allow amendment with aggravated assault because that crime was shown by the evidence adduced at the preliminary examination, as required by Penal Code section 1009. Our reading of the preliminary hearing transcript differs from that of the Attorney General.
Penal Code section 1009 provides in relevant part: “An indictment or accusation cannot be amended so as to change an offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.”
Although aggravated assault may be committed by the use of hands or fists alone (People v. Aguilar (1997) 16 Cal.4th 1023, 1028), “[t]he essential determination is whether the force was likely to produce great bodily injury . . . .” (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161–1162.) At the preliminary hearing, the only evidence of assault was Gonzalez’s testimony that defendant “punched” or “hit” him, and that Gonzalez was scared during the incident. No mention was made of any effect of the hitting. Accordingly, the preliminary hearing transcript lacks substantial evidence to demonstrate that the force used by defendant was likely to produce great bodily injury. (See People v. Fuentes (1946) 74 Cal.App.2d 737, 739–742 [evidence of one punch to the mouth causing laceration and temporary unconsciousness insufficient to support conviction of aggravated assault].) Amendment under Penal Code section 1009 would therefore have been improper.
We further note that a request for leave to amend under Penal Code section 1009 must be denied “if the amendment would prejudice the defendant’s substantial rights. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 129.) Here, assuming that the preliminary hearing evidence would have supported an allegation of aggravated assault and the trial court had proceeded under Penal Code section 1009, the court would have been compelled to deny leave to amend the information because of the prejudice emanating from the aggravated assault charge.
At the preliminary hearing, defense counsel asked Gonzalez several questions about the physical appearance of the three persons who confronted him and about his identification of defendant, thereby establishing a basis for the mistaken identity defense to which counsel referred (noted above) in objecting to instructions on aggravated assault.
In People v. Fuentes, supra, 74 Cal.App.2d at pages 740–742, upon concluding that insufficient evidence of force likely to produce great bodily injury had been shown, the Court of Appeal reduced the crime of which the defendant had been convicted from aggravated assault to battery under Penal Code section 242. Here, defendant was convicted by jury of misdemeanor battery, an offense which was shown by the evidence adduced at the preliminary hearing, to which he specifically did not object at trial, and which he also concedes on appeal. Thus, the appropriate disposition for this case is to reverse defendant’s conviction of aggravated assault with directions to dismiss it and strike the prior conviction enhancements (which are dependent on an underlying felony conviction), and affirm the conviction of misdemeanor battery.
People v. Yeats (1977) 66 Cal.App.3d 874, 878, disapproved of People v. Fuentes, supra, 74 Cal.App.3d at page 742, to the extent Fuentes held that battery is a necessarily included offense of assault.
DISPOSITION
Defendant’s conviction on count 2 (aggravated assault) is reversed with directions to dismiss it and strike the enhancements imposed under Penal Code section 667.5, subdivision (b). Defendant’s conviction on count 3 (misdemeanor battery) is affirmed and the matter is remanded for resentencing.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.