People v. Vasquez CA2/7

Filed 1/18/22 P. v. Vasquez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B307458

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA144365) v.

DENIS VASQUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed in part and affirmed in part. Jason M. Howell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy

Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent. ____________________ Denis Vasquez was convicted following a jury trial of simple assault (Pen. Code, § 240)1 as a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§ 459) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), with a true finding that Vasquez had personally inflicted great bodily injury during the commission of the burglary and aggravated assault. On appeal Vasquez contends, and the Attorney General agrees, that the simple assault conviction should be reversed because that offense was necessarily included within the aggravated assault for which Vasquez was also convicted. We also agree with Vasquez and reverse the simple assault conviction. FACTUAL AND PROCEDURAL BACKGROUND 1. The Information Vasquez was charged in an information filed July 5, 2017 with assaulting Ramiro Avila with a deadly weapon, a knife, on April 4, 2016 (count 1); first degree burglary on that date by entering a home occupied by Avila with the intent to commit a felony (count 2); and assaulting Avila by means of force likely to produce great bodily injury (count 3). The information specially alleged as to counts 2 and 3 that Vasquez had personally used a deadly or dangerous weapon in the commission of the offenses (§ 12022, subd. (b)(1)) and as to all three counts that Vasquez had personally inflicted great bodily injury upon Avila in the commission of the offenses (§ 12022.7, subd. (a)).