People v. Konepachit CA3

Filed 9/24/14 P. v. Konepachit CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C075412

v. (Super. Ct. No. 13F03312)

DAVID KONEPACHIT,

Defendant and Appellant.

A jury convicted defendant David Konepachit of second degree robbery (count one) and battery with serious bodily injury (count two). The jury also found true an enhancement allegation that defendant personally inflicted great bodily injury. The trial court sustained additional enhancement allegations and sentenced defendant to 16 years in state prison.

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Defendant now contends (1) his robbery conviction is not supported by the evidence, because there is insufficient evidence that he formed the intent to steal before or during the battery; (2) the trial court failed in its sua sponte duty to instruct on theft as a lesser included offense of robbery; and (3) there is insufficient evidence of serious bodily injury to support the battery conviction. We conclude the evidence supports the convictions, and the trial court did not have a sua sponte duty to instruct on theft as a lesser included offense to robbery. We will affirm the judgment. BACKGROUND Bryan Brown became intoxicated while drinking with friends at his friend’s apartment and at a bar. He and his friends subsequently went to a Denny’s restaurant around 1:50 a.m. Defendant was at a table in the restaurant with three women and a Hispanic man. Brown entered the men’s restroom at the restaurant around 2:25 a.m. Restaurant video cameras recorded activity in the dining room but not in the restroom. The restroom was unoccupied when Brown entered, but defendant and the Hispanic man at his table soon moved toward the men’s restroom about 40 seconds apart. Brown was at the urinal and heard the door open, then shut, then open again. When Brown turned his head to look, he was struck on the side of the head. Brown fell against the bathroom stall divider and turned to face his attacker. A second man grabbed Brown and threw him into a toilet stall. Brown was hit two or three times in the head, fell to the ground, and was kneed or kicked in the ribs. One of the assailants got on Brown’s back and repeatedly hit him in the back of his head. The assailants went through Brown’s pockets and then resumed the attack. Brown tried to get up, but one of the men yelled “stay down” and kicked Brown on the left side of his face. One of the men said “he’s done” and the assailants left the bathroom. The assailants left the restaurant together; the women in their group also left.