People v. Lopez CA3

Filed 11/22/13 P. v. Lopez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C071582

Plaintiff and Respondent, (Super. Ct. Nos. CRF11497, CRF1269) v.

THOMAS ALLEN LOPEZ,

Defendant and Appellant.

Following a jury trial, defendant Thomas Allen Lopez was convicted of assault with force likely to cause great bodily injury and battery causing serious bodily injury. On appeal, he contends his conviction for assault with force likely to cause great bodily injury must be reversed as it is a lesser included offense of battery causing serious bodily injury. We affirm the judgment.

FACTS AND PROCEEDINGS In January 2012, defendant was incarcerated along with two other inmates, Michael Barabin and John Fleming. The trio was discussing Fleming’s tattoos, when defendant mumbled something and Barabin said, “what’s it to you?” Barabin turned

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away and defendant jumped on the table and kicked Barabin on the left side of his face. The kick broke Barabin’s jaw in two places. Barabin was treated with Tylenol and ultimately his jaw was surgically wired shut for about a month. An information charged defendant with battery causing serious bodily injury (Pen. Code, § 243, subd. (d)--count one; unless otherwise stated, statutory references that follow are to the Penal Code) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)--count two). The information also alleged, as to count one, that defendant personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) and as to count two, personally caused great bodily injury (§ 12022.7, subd. (a)). A jury found defendant guilty of both charges and found the enhancement allegations true. The trial court sentenced defendant to an aggregate term of seven years in state prison, four years on count two, with a consecutive three-year sentence for the great bodily injury enhancement. The sentence on count one was stayed under section 654. The trial court awarded defendant 157 days of presentence custody credits. Defendant was also sentenced in an unrelated case, case No. CRF11-497, to a consecutive one-year term and awarded 387 days of presentence custody credit.