People v. Moore CA2/2

Filed 11/20/13 P. v. Moore CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B244768

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA086493) v.

RYAN ERNEST MOORE,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Villalobos, Judge. Affirmed with directions.

John Scott Cramer, 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, Kenneth C. Byrne and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.

An information filed by the Los Angeles County District Attorney charged defendant Ryan Ernest Moore in count 1 with felony assault on a peace officer (Pen. Code, § 245, subd. (c))1, in count 2 with felony corporal injury to a cohabitant (§ 273.5, subd. (a)), and in count 3 with felony assault with a deadly weapon (§ 245, subd. (a)(1)). The information further alleged as to count 1 that defendant had personally used a knife as a deadly weapon and as to count 2 that defendant had personally used a plastic chair as a deadly weapon (§ 12022, subd. (b)(1)). Defendant pleaded not guilty and denied the special allegations. A jury found defendant not guilty of the charged offense in count 1 but found him guilty of the lesser included offense of misdemeanor assault on a peace officer. The jury also found defendant guilty as charged in counts 2 and 3 and further found the deadly weapon allegation as to count 2 to be true. The trial court sentenced defendant to the mid-term of three years on count 2, plus an additional one-year term for the deadly weapon enhancement. The court imposed a one-year sentence on count 1, to run consecutively with the sentence imposed on count 2. As to count 3, the court imposed and stayed a three-year sentence pursuant to section 654. Defendant challenges his conviction of assault with a deadly weapon in count 3 and the jury’s true finding as to the deadly weapon enhancement in count 2 on the ground that there was insufficient evidence that he used a plastic chair as a deadly weapon. Both defendant and the Attorney General agree that the abstract of judgment contains a clerical error that should be corrected to show that the one-year deadly weapon enhancement was imposed on count 2, and not on count 1. Substantial evidence supports defendant’s conviction for assault with a deadly weapon. We affirm the judgment but order the abstract of judgment to be corrected to accurately reflect the sentence imposed by the trial court.