People v. Lavi CA2/6

Filed 12/12/22 P. v. Lavi CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B306345 (Super. Ct. No. 2019031654) Plaintiff and Respondent, (Ventura County)

v. OPINION ON TRANSFER FROM SUPREME COURT NASSER LAVI,

Defendant and Appellant.

Nasser Lavi appeals from the judgment entered after a jury had convicted him of assault by means of force likely to produce great bodily injury (assault GBI – Pen. Code, § 245, subd. (a)(4));1 willfully inflicting physical pain upon an elder (elder abuse – § 368, subd. (b)(1)); and making threatening phone calls, a misdemeanor (§ 653m, subd. (a)). The victim was appellant’s 78- year-old uncle, J.L. (Uncle). Appellant was sentenced to prison for three years.

1 All statutory references are to the Penal Code.

Appellant was charged with assault with a deadly weapon (ADW). (§ 245, subd. (a)(1).) He contends the trial court prejudicially instructed the jury on what it mistakenly believed to be the lesser included offense of assault GBI. In addition, he claims the court failed to instruct the jury sua sponte on self- defense. Finally, appellant argues that in violation of section 654, the trial court imposed an unstayed concurrent term for the elder abuse conviction. In an unpublished opinion filed on June 22, 2021, we modified the judgment to stay execution of the sentence for the elder abuse conviction and affirmed the judgment as modified. On September 1, 2021, the California Supreme Court granted review (S270089). On November 16, 2022, it transferred the matter to us “with directions to vacate [our] decision and reconsider the cause in light of People v. Aguayo (2022) 13 Cal.5th 974 [Aguayo].” In Aguayo the Supreme Court held that assault GBI and ADW “are ‘different statements of the same offense.’” (Id. at p. 979.) Thus, assault GBI is not a lesser included offense of ADW. We vacate our original decision. After reconsidering the cause in light of Aguayo and the parties’ supplemental briefs, we have not changed our original decision’s disposition of the appeal. We modify the judgment to stay execution of the sentence for the elder abuse conviction and affirm the judgment as modified. Facts Appellant, who was about 55 years old, mistakenly believed that Uncle owed him millions of dollars. Appellant left numerous profanity-laced voicemails on Uncle’s phone threatening to commit acts of violence against him. In one of the voicemails,