People v. Driskell CA3

Filed 11/30/21 P. v. Driskell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C092490

Plaintiff and Respondent, (Super. Ct. No. 19F7023)

v.

JASON SCOTT DRISKELL,

Defendant and Appellant.

A jury found defendant Jason Scott Driskell guilty of a single count of assault with a deadly weapon after he hit the victim with a hammer. On appeal, defendant contends the trial court erred when it failed to instruct the jury on the lesser included offense of simple assault. He also argues the court incorrectly calculated his presentence custody credits and imposed an indefinite no-contact order as part of his sentence without any legal authority. We conclude the trial court did not err in not instructing the jury on simple assault, but modify the judgment to correct the credits and strike the no-contact order. As modified, the judgment is affirmed.

1

FACTUAL AND PROCEDURAL BACKGROUND The prosecution charged defendant with two counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1 The prosecution also alleged defendant had a prior strike conviction for assault with a deadly weapon (§ 1170.12) and had a prior serious felony conviction (§ 667, subd. (a)(1)). The first count alleged an assault against T.M. and the second count alleged an assault against D.B. At trial, D.B. testified she was near the library when she saw defendant and T.M. arguing. Defendant had a “drywall hammer” in his hand. 2 When D.B. walked up to defendant, defendant drew his arm back to swing the hammer at T.M. 3 D.B. then reached up and “put his hand down” with a “swatting motion,” stopping defendant. D.B. described defendant’s swing as “at shoulder level or under shoulder level,” and said defendant “swung like a girl,” with a “[w]ide swing.” Defendant then hit D.B. in the head with the hammer, knocking her glasses off. D.B. said she “saw stars” and sat down because she was afraid she might have a concussion. Bystanders detained defendant, and D.B. thought they “were going to beat [defendant] up.” Afterwards, D.B. had a “great big black eye for a long time,” and the injury left a “permanent mark” under her eye. She also had a swollen wrist contusion. Shortly after the incident, she told police officers defendant had swung the hammer at her three times. The first time, he swung at her head, and she blocked the strike with her wrist. The second time, she deflected the blow, and the third time, he struck her above the eye. One police officer testified that he believed D.B. had been hit with the blunt end