People v. Thompson

Opinion

BENSON, J. Defendant Michael Thompson appeals from his conviction of two counts of assault with a deadly weapon by means likely to produce great bodily harm, with one enhancement for personal use of a deadly and dangerous weapon, and of misdemeanor battery. Appellant contends the trial court erred by imposing a one-year consecutive sentence on one of the assault convictions. We affirm the judgment.

Factual and Procedural Background

On March 15, 1989, Raymond Tom, his father, Shee Tom, his mother, Ngan Tom, and his grandmother, Rui Yu, were in the family’s restaurant (Tom’s Chinese Restaurant) in Oakland. At approximately 11 p.m., they heard a loud banging on one of the walls. Raymond Tom went to the window to investigate, but could see nothing. Because it was late in the [1649]evening, Raymond armed himself with a baseball bat and stepped out the back door, holding it open with one leg.

As the loud banging continued, Raymond looked out the door and saw appellant and two companions standing about six feet away. Two were banging on the wall of the restaurant. Holding the bat down at his side, Raymond told them to stop. One of the three replied, “We like to bang. What can you do about it?” As Raymond turned to go back into the restaurant, appellant struck him in the face, banging his head against the door. Raymond raised the bat to defend himself, but was grabbed from behind and held by one of appellant’s companions.

Raymond’s mother screamed and Raymond’s father, Shee Tom, came outside to help his son. He took the bat from his son’s hands, held it up to frighten appellant and his companions, and then tried to pull Raymond back inside. Appellant then punched Shee Tom, knocked him to the ground, stomped on his arm to wrest away the bat, and kicked him while he was down on the sidewalk.1 At that point, Ngan Tom came out and tried to help her husband, but appellant pushed her to the ground.2 Appellant then raised the bat to strike Shee Tom. As Raymond Tom’s grandmother, Rui Yu, rushed over, appellant raised the bat again and hit her over the head, rendering her unconscious. Appellant ran when one of his companions told him the police were coming.

After his arrest, appellant was charged with robbing Shee Tom (Pen. Code, § 211) and assaulting Raymond Tom, Shee Tom, and Rui Yu with a deadly weapon (the baseball bat) by a means likely to produce great bodily injury (three separate counts under Pen. Code, § 245, subd. (a)(1).) Enhancements were added to each of the assault charges for personal use of a deadly and dangerous weapon. (Pen. Code, §§ 1192.7, subd. (c)(23); 12022, subd. (d).) Two additional enhancements, for intentional infliction of great bodily injury (Pen. Code, § 12022.7) and injuring a victim over 60 years old (Pen. Code, § 1203.09, subd. (f)), were alleged based on the assault on Rui Yu.