People v. Madera CA5

Filed 12/9/13 P. v. Madera CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, F065645

v. (Super. Ct. No. VCF258962)

VALOIS MADERA, JR., OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Kane, J., and Poochigian, J.

A jury convicted appellant, Valois Madera, Jr., of two counts of assault by means of force likely to produce great bodily harm (counts 1 & 2/Pen. Code, § 245, subd. (a)(1)),1 and one count each of battery resulting in serious bodily injury (count 3/§ 243, subd. (d)), and dissuading a witness from reporting a crime (count 4/§ 136.1, subd. (b)(1)). The jury also found true a great bodily enhancement (§ 12022.7, subd. (a)) in count 1.2 In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)), two prior prison term enhancements (§ 667.5, subd. (b)), and allegations that appellant had a prior conviction within the meaning of the three strikes law. (§ 667, subds. (b)-(i).) On appeal, Madera contends: 1) the evidence is insufficient to sustain his conviction in count 3 for battery resulting in serious bodily injury; 2) the court committed instructional error; and 3) the court erred by its failure to strike one of the prior prison term enhancements. We will find merit to this last contention and will strike the enhancement at issue. In all other respects, we will affirm. FACTS The evidence at trial established that on July 16, 2011, at approximately 10:50 p.m. Gilberto Alvarez walked to a liquor store in Dinuba where he saw Madera and his cousin, Michael Caldera, in front of the store. Alvarez approached Caldera and asked if he could talk to him. Madera then asked Alvarez if he had any problems with Caldera. Alvarez replied that he did not and began walking backwards. Madera punched Alvarez in the jaw, breaking it in two places. As Madera threw more punches, Alvarez bear- hugged him and grabbed his ponytail and they both fell to the ground. After someone pushed Alvarez from behind, Madera got up and left with Caldera and a third man.