P. v. Torres CA2/1

Filed 7/31/13 P. v. Torres CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B240275

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA054083) v.

GERARDO TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson Ong, Judge. Convictions affirmed in part, reversed in part, sentence modified in part. Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Gerardo Torres of two counts of assault with a deadly weapon, one count of felony vandalism, driving under the influence and driving with a blood alcohol level of 0.08 or greater and three counts of driving with a suspended license. The court sentenced Torres to an aggregate term of 10 years 2 months. Torres does not challenge his assault convictions. The Attorney General agrees that one of the suspended license convictions must be reversed for insufficient evidence, the punishment for the conviction of driving under the influence must be stayed, and the one-year deadly weapon enhancement imposed on the vandalism conviction should be reduced to four months.1 We agree. The parties’ concessions leave just two questions for us to answer: Should one of the remaining suspended license convictions also be reversed for insufficient evidence? Should the sentence on the vandalism conviction be stayed under Penal Code section 654 because it is based on the same conduct that was punished as assault with a deadly weapon? We answer yes to both questions. FACTS AND PROCEEDINGS BELOW In September 2011, Danny Casillas was sitting on his front porch when Torres drove slowly down the street, made a U-turn and parked his car on the sidewalk next to Casillas’s driveway. Torres got out of his car and walked toward Casillas saying: “I’m here to kick your ass and kill you.” When Casillas asked Torres who he was and who sent him, Torres ignored the questions. Instead, Torres took off his shirt and told Casillas: “Come on, I’m ready.” Torres’s hands were balled into fists. At that point, Casillas’s wife, Maria, came out on the porch and tried to pull Casillas back into the house. She told Casillas not to fight the stranger because he was “too crazy” and probably had a knife or some other weapon “to kill you.” Casillas