People v. Amin

Opinion

KINGSLEY, J.

Defendant was charged with: (count I) robbery, in violation of section 211 of the Penal Code; and (count II) assault with a deadly weapon, in violation of subdivision (a) of section 245 of the Penal Code. After a trial by the court, trial by jury having been duly waived, defendant was found guilty of robbery in the second degree and of assault by means likely to produce great bodily injury, and with a deadly weapon. He was sentenced to state prison on the robbery count and to one year in the county jail on the assault count, the sentence of the assault count being stayed under the

Niles

formula

(People

v.

Niles

(1964) 227 Cal.App.2d 749 [39 Cal.Rptr. 11]). Defendant has appealed; we affirm.

The evidence for the People showed that defendant and another man had attacked an elderly man as he was returning to his room, hitting him in the face with a broken wine bottle and taking his property. Defendant was arrested after a chase.

[639]

On this appeal, defendant does not challenge the sufficiency of the evidence to sustain the findings of guilt on both counts. His single contention here is that:

“Appellant’s Assault Conviction in Count 2 Must Be Reversed as it Constitutes a Double Conviction for an Offense Which Was Necessarily Included Within His Robbery Conviction”

In support of that contention, defendant relies primarily on our opinion in

People

v.

Westbrook

(1976) 57 Cal.App.3d 260 [129 Cal.Rptr. 143]. The portion of that opinion pertinent to this appeal consisted of one short paragraph,

1

merely announcing our conclusion but without reasoning or analysis of the problem. In light of that fact, we deem it appropriate to consider the issue anew and more fully.