People v. Strickland CA3

Filed 11/28/22 P. v. Strickland CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C094987

Plaintiff and Respondent, (Super. Ct. No. P19CRF0326)

v.

MATTHEW RAYMOND STRICKLAND,

Defendant and Appellant.

Defendant Matthew Raymond Strickland challenges his conviction for two forms of aggravated assault. Defendant argues: (1) reversal is required because the trial court refused to instruct the jury that defendant had a right to remove a trespasser from his property; (2) remand is required for the trial court to vacate one of the convictions because they are either the same offense or included offenses; and (3) we must vacate the fee for preparing a presentence investigation report.

1

We reject defendant’s first argument because the record does not contain substantial evidence the victim was a trespasser. We agree with defendant’s second argument, based on our Supreme Court’s recent opinion in People v. Aguayo (2022) 13 Cal.5th 974 (Aguayo), which held that assault with a deadly weapon and assault with force likely to produce great bodily injury are the same offense and a defendant may not be convicted of both based on the same act or course of conduct. (Id. at pp. 979, 993.) Finally, we agree, as the Attorney General concedes, that the challenged fee must be vacated. We will vacate the fee, remand with instructions, and otherwise affirm. FACTS AND PROCEEDINGS Defendant and his wife Tina hosted a party for a friend at their house, which they owned with Tina’s mother. Tina invited her friend Gary Blodgett and his band to play music at the party. After a disputed series of events, which we describe in more detail below, defendant hit Blodgett in the head with a piece of firewood. The jury found defendant guilty of both assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). After defendant waived his right to a jury trial on the allegations that he had a prior serious felony conviction warranting sentencing enhancements pursuant to section 667, subdivisions (a)(1) and (e)(1), the trial court found the allegations true. The trial court sentenced defendant to an aggregate term of six years in prison. The court selected the middle term of three years for each of the assault offenses, which were doubled to six years each for defendant’s prior strike, and then stayed the sentence for assault with force likely to produce great bodily injury pursuant to section 654. The court also struck the five-year section 667, subdivision (a)(1) enhancement.2