People v. Hawkins CA2/1

Filed 8/26/15 P. v. Hawkins CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B257106

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA238853) v.

MICHAEL DALE HAWKINS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed in part, reversed in part, and remanded with instructions. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

FACTUAL AND PROCEDURAL BACKGROUND On November 11, 2002, defendant Michael Hawkins shattered the glass door of a closed donut shop and entered the premises. Sary Siv, who was working in the shop, confronted defendant with a knife and told him to leave. Defendant left, but later returned and tried to remove the cash register. Siv again approached with a knife, and defendant dropped the register and fled. Defendant later entered a third time and threw a seven and one-half inch rock that hit Siv, then fled. He was apprehended by two citizens. Defendant was charged with second degree burglary (Pen. Code, § 459; count 1), attempted robbery (Pen. Code, §§ 664/211; count 2), and assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 3).1 All three counts were alleged to have occurred on the same day. Defendant was also alleged to have suffered two prior felony convictions within the meaning of the “Three Strikes” law and one prior serious felony conviction. As to count 2, attempted robbery, it was additionally alleged that defendant had personally used a deadly and dangerous weapon, “to wit, ROCK.” (Former § 12022, subd. (b)(1).) Of particular note is count 3, which alleged the following: “On or about November 11, 2002, . . . the crime of ASSAULT WITH DEADLY WEAPON, BY MEANS LIKELY TO PRODUCE GBI, in violation of PENAL CODE SECTION 245(A)(1), a Felony, was committed by [defendant], who did willfully and unlawfully commit an assault upon SARY SIV with a deadly weapon, to wit, ROCK, and by means of force likely to produce great bodily injury.” On March 25, 2003, a jury found defendant guilty “as charged” on all counts and found the deadly weapon allegation as to count 2 to be true. He was sentenced to concurrent indeterminate terms of 25 years to life on each count, plus a five-year serious felony enhancement as to counts 2 and 3, concurrent. (§§ 667, subd. (a)(1), 1170.12.)