People v. Ronnie N.

Opinion

WHITE, P. J.

On June 9, 1984, while walking to a bus stop with a friend, Erica McCoy was shot in the mouth with a B-B gun. Two of the victim’s teeth were chipped in half. Appellant, Ronnie N., was identified as the assailant. A petition was filed on July 23, 1984, in the Alameda County Superior Court, sitting as a juvenile court. The petition alleged that appellant came within the provisions of the Welfare and Institutions Code section 602 in that he violated (count I) Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon or with force likely to produce great bodily

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injury), and (count II) Penal Code section 243, subdivision (d) (battery causing serious bodily injury).

On October 16, 1984, a hearing was held and both allegations of the petition were found true. Disposition of count II was stayed pending the completion of the sentence on count I.

On October 22, 1984, appellant appealed to this court on the ground that he could not be convicted of both offenses, arguing that felony assault is a lesser included offense of felony battery. For reasons we state below, we affirm the findings of the juvenile court.

Argument

The issue in this case is whether a criminal defendant may be convicted of both assault with a deadly weapon, or with force likely to produce great bodily injury,

and,

battery which causes serious bodily injury, for a single continuous act.

It is helpful to review the background of the offenses involved before analyzing appellant’s contentions and applying the relevant legal principles. In 1872, the California Legislature enacted Penal Code sections 240, 242, and 245. Penal Code section 240 defines assault, it states: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Penal Code section 242 defines battery, it states: “A battery is any willful and unlawful use of force or violence upon the person of another.” These two offenses are misdemeanors, an assault being punishable by a fine not exceeding $1,000 or by imprisonment in the county jail not exceeding six months, or by both (Pen. Code, § 241); battery being punishable by a fine of not exceeding $2,000, or imprisonment in the county jail not exceeding six months, or by both. (Pen. Code, § 243, subd. (a).)