People v. Jackson CA3

Filed 7/8/21 P. v. Jackson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C089347

Plaintiff and Respondent, (Super. Ct. No. 18FE009188)

v.

MARTAVIUS ANTON JACKSON,

Defendant and Appellant.

A jury found defendant Martavius Anton Jackson guilty of assault with a deadly weapon and assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1), (4) [statutory section references that follow are found in the Penal Code unless otherwise set forth].) On appeal, defendant contends: (1) his duplicative convictions under section 245 arising from the same assault based on a single act must be reversed pursuant to section 954; and alternatively, (2) he cannot be convicted under both

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section 245, subdivisions (a)(1) and (a)(4) because assault by force likely to produce great bodily injury is a lesser included offense of assault with a deadly weapon. We will vacate defendant’s conviction for assault by means of force likely to cause great bodily injury, which duplicates his conviction for assault with a deadly weapon where, as here, both crimes are based on the same act. Because we agree with defendant’s first argument, we need not reach his alternative argument. As modified, we will affirm with directions.

FACTS AND HISTORY OF THE PROCEEDINGS Defendant was charged in count one of an information with assault with a deadly weapon (§ 245, subd. (a)(1)), and in count two with assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)). The information further alleged as to both counts that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). D.B., and his mother, P.S., lived in adjoining apartment units. D.B. was acquainted with defendant and his girlfriend, S.P., and had a cordial relationship with them. On the evening of May 3, 2018, D.B. stepped outside his apartment to have a cigarette, where he found his mother crying. When D.B. asked what was wrong, P.S. replied, “that the neighbors had threatened her” and that “she was going to call the police.” She pointed to a car and said that S.P. and defendant were the ones who had threatened her. S.P. and defendant, still in the car, screamed, “bitch” toward D.B. and his mother, so D.B. walked towards the car. As he got closer, he saw S.P. standing outside of the car by the driver’s side door and defendant sitting in the passenger seat inside the car. D.B. asked S.P., “[W]hat’s wrong? What’s going on?” in an attempt to defuse the situation. Defendant then got out of the car, aggressively moved toward D.B., and repeatedly yelled, “You need to be talking to me.” D.B. responded that he was talking to defendant. The two continued exchanging words, then defendant swung a closed fist at D.B.’s head. He missed, and S.P. attempted to break things up. D.B. stepped back and