People v. Hopkins

Opinion

HASTINGS, J.

Defendant, after a juiy trial, was convicted of attempted robbery, a violation of Penal Code sections 664/211 (count I) and assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a) (count II). Probation was denied, and as to each count defendant was sentenced to state prison for the term prescribed by law; sentence as to count I was, however, stayed pending

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determination of any appeal on count II, such stay to become permanent upon completion of the sentence on count II.

Resolution of this appeal does not require detailed recitation of the facts. Defendant and a companion were observed by two Los Angeles police officers to be involved in a scuffle with a third man, Hector Agraz. The two were on top of Agraz, swinging and kicking at him. Upon seeing the officers, the assailants fled from the scene. Defendant was apprehended by one of the officers, while his companion escaped.

The victim later identified defendant as one of his assailants. The assault came when Agraz returned to his car after defendant and his companion had removed a CB radio from Agraz’ car. While Agraz was being assaulted, the two constantly kept asking him for his wallet.

The victim’s injuries apparently were not serious. He suffered a cut on the forehead, which required no stitches, a bloody and swollen nose, and puffed eyes.

Defendant contends that he was improperly convicted under Penal Code section 245, subdivision (a), because that offense was “preempted” by the enactment of Penal Code section 243. He argues that the “special” crime of battery causing serious bodily injury (felony battery, for convenience) concerns and conflicts with the same matter as the “general” crime of assault by means of force likely to produce great bodily injury. This conflict therefore precludes prosecution under the general statute. We disagree.

Whether a specific statute supplants a general statute is basically a matter of legislative intent.

(Gilbert