People v. Razon CA2/6

Filed 9/17/24 P. v. Razon CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B328166 (Super. Ct. No. MA077525) Plaintiff and Respondent, (Los Angeles County)

v.

DWAYNE BERNARD RAZON,

Defendant and Appellant.

Dwayne Bernard Razon appeals his sentence after a jury found him guilty of assault by a life prisoner by means of force likely to produce great bodily injury (Pen. Code, § 45001; count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), and assault by a prisoner by means of force likely to produce great bodily injury (§ 4501, subd. (b); count 3). The jury also found true allegations he personally inflicted great bodily injury on all counts. Appellant admitted two prior convictions for purposes of

1 Unlabeled statutory cites are to the Penal Code.

the recidivist sentencing statute (§ 667, subd. (a)(1)) and the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court granted appellant’s motion to strike one of the prior strike convictions and declined to enhance his sentence on counts 2 and 3. It sentenced him to a prison term of 21 years to life on count 1, a determinate term of four years on count 2, and a determinate term of six years on count 3. It stayed the sentences on counts 2 and 3 pursuant to section 654. Appellant argues four points. First, he contends the jury should have received an unanimity instruction as to count 2 for battery with serious bodily injury. Second, he contends we should reverse his conviction on count 2 because substantial evidence does not support the court’s finding that he seriously injured the victim or caused great bodily harm. Third, he contends we should strike the great bodily injury finding on the same count because great bodily injury is an element of serious bodily injury under section 243. Fourth, he requests we strike his conviction on count 3 because section 4501 assault is a lesser- included offense of section 4500 assault. We will strike the enhancement on count 2 and reverse the conviction on count 3 but otherwise affirm. FACTS AND PROCEDURAL HISTORY A Riverside County jury convicted appellant of murder and other counts in 1996. He remained incarcerated as a life prisoner at California State Prison in Lancaster as of July 2018. He shared a cell with Charles Wade, a 68-year-old wheelchair-bound inmate who weighed about 100 pounds. Appellant was by then 52 years old and weighed over 300 pounds. One morning after breakfast, guards in the prison yard saw appellant straddling a supine Wade and punching him in the