People v. Joe CA3

Filed 4/27/16 P. v. Joe CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C078121

Plaintiff and Respondent, (Super. Ct. No. 14F03583)

v.

CARRIE DELORES JOE,

Defendant and Appellant.

As a result of a fight with her neighbor Vaneesha King, defendant Carrie Delores Joe was convicted by jury trial of assault with a deadly weapon and assault by force likely to produce great bodily injury. (Pen. Code, § 245, subds. (a)(1) & (a)(4); unless otherwise set forth, statutory references that follow are to the Penal Code.) On appeal, defendant claims it was improper to convict her of two counts of aggravated assault, when the charges arose from a single assault and we agree. We reverse defendant’s conviction on count two and order that count dismissed.

1

FACTS AND PROCEEDINGS

After verbally arguing with King, defendant threw a glass bottle at her. King jumped out of the way, and the bottle shattered. Defendant went back to her apartment, but about five minutes later, defendant came back outside with a metal pole in her hands, swinging it and walking angrily toward King. King’s husband took the pole away from defendant, and defendant again returned to her apartment. A few hours later, King saw defendant outside sitting on the stairs and went toward her to talk to her. Defendant stood up and struck King on the face with a glass bottle, injuring King’s eye. The two started hitting each other, and with her fingers defendant gouged at King’s eye. The fight ended when the two were pulled apart. King was taken to the hospital and required stitches and surgery for her eye. Defendant also suffered injuries. Defendant was charged with assault with a deadly weapon (namely, a bottle) (count one; § 245, subd. (a)(1)), and assault by force likely to produce great bodily injury (count two; § 245, subd. (a)(4)). Count two was charged as a “further and separate cause of action, being a different offense of the same class of crimes and offenses and connected in its commission with the charges set forth in Count One hereof . . . .” With respect to both counts, it was further alleged defendant inflicted great bodily injury on King. (§ 12022.7, subd. (a).) At closing, the People argued defendant could be found guilty of count one based on either of the two incidents involving a glass bottle, or both. The People also argued defendant could be found guilty of count two based on either hitting King with the bottle or digging her finger into King’s eye, or both. The trial court instructed the People “presented evidence of more than one act to prove that the defendant committed each offense. . . . You must not find the defendant guilty unless you all agree that the People have proved that he [sic] defendant committed