People v. Tran CA1/3

Filed 9/22/15 P. v. Tran CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A141345 v. DAO TRAN, (City & County of San Francisco Super. Ct. No. 219821) Defendant and Appellant.

Dao Tran (appellant) appeals from a judgment entered after a jury convicted him of simple mayhem, assault with a deadly weapon, enhanced by infliction of great bodily injury and battery with serious bodily injury, enhanced for use of a deadly weapon. He contends his conviction for the offense of battery with serious bodily injury must be reversed because it is a necessarily included offense of simple mayhem. We reject the contention and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On March 29, 2013, an information was filed alleging appellant committed: (1) aggravated mayhem, enhanced for use of a deadly weapon (crowbar) in violation of Penal Code1 sections 205, 12022, subdivision (b)(1) (count 1); (2) assault with a deadly weapon (crowbar), enhanced by infliction of great bodily injury in violation of sections 245, subdivision (a)(1), 12022.7 (count 2); and (3) battery with serious bodily

1 All further statutory references are to the Penal Code.

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injury, enhanced for use of a deadly weapon (crowbar) in violation of sections 243, subdivision (d), 12022, subdivision (b)(1) (count 3). The information was based on an incident that occurred on May 29, 2012. That night, just around midnight, appellant, a taxi cab driver, picked up restaurant workers Luis Bustamante and Naomi Silva. Bustamante and Silva lived a couple of blocks from each other and shared a cab to go home almost every work night. They had done some wine tasting that evening at work, and thereafter walked to a nearby restaurant where Bustamante drank two cocktails and picked up pizzas for his roommate. Once inside appellant’s cab, Bustamante gave driving directions to appellant so that Silva could be dropped off first on Filbert before proceeding to Bustamante’s stop at Polk between Greenwich and Filbert. Bustamante became irritated when appellant, who was on his cell phone Bluetooth, ignored his driving directions and followed a less convenient route that was not longer, but required “a weird U-turn” to end up at the correct stop. Bustamante told appellant to “get off the Bluetooth” and yelled at him in a loud, aggressive fashion that Silva thought was “a little rude.” Appellant did not respond. Appellant made the first stop on Van Ness and Filbert, about a half block from Silva’s home. Bustamante got out so Silva could exit on the curb side. Silva began walking away onto Filbert to get to her home. Bustamonte did not reenter the cab and began walking. Just as Silva was about to cross the street to her apartment on the south side of Filbert, appellant drove around, pulled up to Silva, and through the window, told her that Bustamante had not paid the fare. Silva apologized, and after seeing through the window that the fare was around $7, gave appellant a $10 bill to include the tip. Moments later, Bustamante appeared, running towards Silva and yelling at her, “Wait. Don’t pay.” Silva, who was in the street next to the cab, told him “I already paid, and it was fine.” Bustamante got upset and tried to get appellant’s attention to say, “she shouldn’t have had to pay you, that kind of thing.” Bustamante kicked the cab on the passenger side, then walked around to the driver’s side where appellant was sitting, and kicked the cab again on the rear driver’s side while yelling at appellant “not to be a douche.” Silva was