Filed 5/7/13 P. v. Arismendez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----



THE PEOPLE,                                                                                  C070247

                   Plaintiff and Respondent,                                   (Super. Ct. No. 11SCR07209)

         v.

ANGEL LEE ARISMENDEZ,

                   Defendant and Appellant.



         Defendant Angel Lee Arismendez stabbed his girlfriend K. outside the car they
had just gotten out of, while two of K.‟s children (N. and B.) were in the backseat. A
jury found defendant guilty of assault with a deadly weapon (count I), assault with force
likely to produce great bodily injury (count II), battery causing great bodily injury (count
III), corporal injury on a cohabitant (count IV), and child endangerment of N. (count V).
Defendant admitted he had one prior robbery conviction. The court sentenced him to 18
years and eight months in prison.
         On appeal, defendant raises five contentions related to the sufficiency of evidence
and sentence. We agree with three. One, defendant‟s conviction for child endangerment
(count V) must be reversed (and the attached enhancements stricken) because there was



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insufficient evidence defendant had care or custody of N. Two, defendant‟s conviction
for assault with force likely to produce great bodily injury (count II) must be reversed
because that offense is not a separate offense from assault with a deadly weapon (count
I). And three, defendant‟s one-year enhancement pursuant to Penal Code1 section 667.5,
subdivision (b) must be stricken because defendant neither admitted he had been
convicted of the underlying felony (which was possessing an illegal weapon) nor did the
People present evidence to support the enhancement.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On July 8, 2011, defendant had been dating K. for about two and one-half months.
He spent the night at her apartment “[j]ust about” every day. Her four children lived in
the apartment as well, including three-year-old N.
       That day, K.‟s mother lent her car to defendant and K. Defendant dropped off
K.‟s mother at a 12:30 p.m. hair appointment. Defendant was then supposed to go back
to the apartment and get K. to take her to a 1:00 p.m. “WIC” appointment.
       In the “early afternoon,” one of the residents saw K. driving the car “a little fast”
into the apartment complex. K. parked and jumped out of the car, waving her hands like
she was getting stung by a bee or wasp. Defendant got out of the “passenger side” and
“t[ook] off down the drive[way].” K. “started after him” but then returned to the car.
When the resident saw that K.‟s arm was bloody, K. told her she was “all right” and then
drove off in the car to the hospital.
       At 2:13 p.m., K. arrived at the hospital‟s emergency room. She was bleeding from
three stab wounds on her upper arms and one on her right cheek. She told the hospital,
“[s]he got between two men who were fighting,” but the hospital did not believe her. She
was discharged.




1      All further section references are to the Penal Code.

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       Police found K. at her apartment in a closet with defendant. At 5:00 p.m., police
interviewed her. She said she was arguing with defendant about “life and money and
everything.” She then “entered the passenger door,” and hit defendant on the side of his
head with her fist. She got out of the car, and then defendant stabbed her. At the time
she was stabbed, they were near the driver‟s side door, which was open. Defendant ran
off, and she chased him because he had her phone. Two of her children were in the
backseat.
       The car was returned to K.‟s mother that day. There was a cut in the steering
wheel and blood on the driver‟s side area.
       Five days after the stabbing, Child Protective Services (CPS) interviewed K. The
CPS worker told K. there had been a referral about the incident, and the worker read it to
her. As read to K., the referral stated that K. punched defendant on the side of the face,
they both got out the car, defendant stabbed K., and then he ran. “[D]uring this
altercation, [N.] and [B.] were in the back seat [sic] of the vehicle.” “[T]hree year old
[N.] was able to talk about mommy and „daddy‟ being in a fight.‟ ”
       K. talked to defendant on the telephone while he was in jail for stabbing her. She
asked defendant how she was going to explain the stabbing. He told her, “At the high
school, yeah. At the high school when I fuckin‟ dropped the fuckin‟ knife cause I was
drunk or whatever. . . .” At trial, K. testified she was injured during a gang fight at the
high school.




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                                       DISCUSSION
                                              I
           There Was Insufficient Evidence Of Child Endangerment (Count V)
       Defendant contends there was insufficient evidence of child endangerment
because there was no evidence he had care or custody of N.2
       “[T]he elements of child endangerment [a]re 1) the defendant having care and
custody of the victim, 2) under circumstances likely to produce great bodily harm or
death, 3) commits criminal negligence.” (People v. Kinkead (2000) 80 Cal.App.4th
1113, 1119, fn. 10.)
       “The terms „care or custody‟ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (People v.
Cochran (1998) 62 Cal.App.4th 826, 832.) In Cochran, the defendant unsuccessfully
argued that his conviction for child endangerment had to be reversed because he did not
have care or custody of the child victim. (Id. at pp. 832-833.) The record showed the
following: the defendant invited the mother and the child to live with him at the home of
his grandparents; the defendant, the child, and the mother all slept in the same room; and
the “mother described [the] defendant as the child‟s surrogate father in that he watched
and fed the baby, gave her baths and helped put her down for naps.” (Id. at p. 829.) The
appellate court explained its holding as follows: “Clearly under the above test, [the]
defendant had a duty as a caretaker to this child. Substantial evidence exists in this
record to support the jury‟s determination that [the] defendant was a person having
custody and care of this child irrespective of a formal familial relationship.” (Id. at
p. 833.)




2      The information specified only N. as the victim.

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       We cannot say the same here because there is no evidence defendant had care or
custody of N., namely that he had demonstrated a “willingness to assume duties
correspondent to the role of a caregiver.” (People v. Cochran, supra, 62 Cal.App.4th at
p. 832.) Simply put, there was no evidence defendant cared for N. or had custody of her.
The most at trial about defendant‟s role in N.‟s life was as follows: he lived with N., her
three siblings, and her mother for two and one-half months; he was in the same car as N.
when K. was driving; and N. referred to defendant as “ „daddy‟ ” in one interview. This
evidence is silent on what defendant did to actually care for N.
       The People‟s argument on appeal is equally unpersuasive. They argue defendant
“played a comfortable role as a member of [K.]‟s family,” pointing out he was allowed to
borrow K.‟s mother‟s car to drive the mother to a hair appointment and K. to a “child
care appointment” (presumably the “WIC” appointment). (Italics omitted.) Again, none
of this evidence demonstrates what defendant did to care for N. Similarly unpersuasive is
the People‟s unsubstantiated argument that because K. was driving the car, “it was logical
for the jury to infer [defendant] was charged with caring for the children as [K.] drove.”
There was no evidence to support this claim either.
       Finally, we note the prosecutor‟s argument at trial about the care or custody
element was similarly lacking. The prosecutor never brought up this count in his closing
statement. When defendant then argued at the beginning of his closing statement that
there was no evidence he had care or custody of the children, the prosecutor‟s only
argument in rebuttal as to this point was, “Who was in the [car]? The defendant, [K.],
and [K.‟s children.] That‟s enough.” As we have just explained, however, it is not.
       Given our conclusion there was insufficient evidence to support the child
endangerment charge, we will also strike the enhancements related to that charge (and
therefore not address defendant‟s substantive arguments as to those enhancements).




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                                              II
                       Defendant’s Conviction For Assault With Force
                  Likely To Produce Great Bodily Injury (Count II) Must Be
              Stricken Because It Is Not A Separate Offense From His Conviction
                        For Assault With A Deadly Weapon (Count I)
       Defendant contends his conviction for assault with force likely to produce great
bodily injury (count II) must be stricken because it is not a separate offense from his
conviction for assault with a deadly weapon (count I). As the People concede, defendant
is correct.
       “Section 245 . . . defines only one offense, to wit, „assault upon the person of
another with a deadly weapon or instrument or by any means of force likely to produce
great bodily injury. . . .‟ The offense of assault by means of force likely to produce great
bodily injury is not an offense separate from . . . the offense of assault with a deadly
weapon.” (In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.)
       We will strike defendant‟s conviction for assault with force likely to produce great
bodily injury (count II) and its related enhancements instead of his conviction for assault
with a deadly weapon (count I) because when the crime is committed with a deadly
weapon, the crime is necessarily a serious felony and when it is committed only with
force likely to produce great bodily injury, it is not necessarily so. (See People v.
Delgado (2008) 43 Cal. 4th 1059, 1065.)
                                             III
                Defendant’s Counsel Was Not Ineffective For Failing To Raise
                   A Double Jeopardy Challenge To Defendant’s Sentence
       Defendant contends that his convictions for assault with a deadly weapon
(count I), assault with force likely to produce great bodily injury (count II), and battery
causing great bodily injury (count III) must be stricken in light of his conviction for
corporal injury on a cohabitant (count IV) because each of these counts depends on the

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same indivisible act. He bases this argument on the double jeopardy clauses of the state
and federal Constitutions. He argues that because each of these counts has attached to it
a great bodily injury enhancement, each is a serious felony that qualifies as a strike in a
subsequent prosecution for any felony, and that “[i]f the court allows all four convictions
to stand, [he] is more likely to receive a life sentence under the three strikes law for . . . a
. . . future felony than he would with only one new strike.” Recognizing this contention
was not raised in the trial court, defendant further contends his counsel was ineffective
for not objecting on double jeopardy grounds. We disagree because settled law would
have made any objection unmeritorious.
       As defendant recognizes, our Supreme Court has held that: (1) enhancements
cannot be considered for purposes of the rule prohibiting multiple convictions based on
necessarily included offenses (People v. Sloan (2007) 42 Cal.4th 110, 123) and (2) the
lower courts are obligated to follow the holdings of our Supreme Court (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450). For these two reasons, and because
the convictions themselves are not for necessarily included offenses, counsel‟s objection
would have been unmeritorious. (See People v. Osband (1996) 13 Cal.4th 622, 678
[failure to make unmeritorious objections does not constitute ineffective assistance].)
                                               IV
                 Defendant Has Forfeited His Claim That The Trial Court
                   Failed To Advise Him Of The Penal Consequences Of
                           Admitting A Prior Robbery Conviction
       Defendant contends the enhancements relating to his admission that he had a prior
robbery conviction must be stricken because the current court failed to admonish him of
the penal consequences of his admission. As we explain, defendant has forfeited this
contention.
       It is a “judicially declared rule of criminal procedure” that a defendant be advised
of the penal consequences of his admission. (In re Yurko (1974) 10 Cal.3d 857, 864.)

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“Consequently, when the only error is a failure to advise of the penal consequences, the
error is waived if not raised at or before sentencing.” (People v. Wrice (1995) 38
Cal.App.4th 767, 770-771.)
       Here, there was no objection alerting the court to its failure to properly advise
defendant. As such, defendant‟s contention on appeal is forfeited. (See In re S.B. (2004)
32 Cal.4th 1287, 1293, fn. 2 [the correct legal term for loss of a right based on failure to
assert it in a timely fashion is forfeiture, not waiver].)
                                               V
     Defendant’s One-Year Enhancement For A Prior Prison Term Must Be Stricken
       The information alleged a three-year enhancement for defendant‟s prior robbery
conviction pursuant to section 667.5, subdivision (a) and a one-year enhancement for
possessing an illegal weapon pursuant to 667.5, subdivision (b). Defendant‟s probation
report stated he served a single prison term for both convictions. When the court took
defendant‟s admission to these prior offenses, the court inexplicably had defendant admit
his robbery conviction twice without asking him about his prior conviction for possessing
an illegal weapon.
       Defendant contends his one-year enhancement must be stricken because he never
admitted the conviction for possessing an illegal weapon and, in any event, he never
served a separate prison term for that offense. As the People concede, he is correct on
both points. Defendant admitted only the robbery conviction, albeit twice. And, even if
he had admitted the possessing an illegal weapon conviction, it could not be the basis of
the one-year prior prison term because he served only one period of incarceration for that
offense and the robbery. (See People v. Medina (1988) 206 Cal.App.3d 986, 991 [“the
obvious intent of section 667.5 is to count each period of confinement in prison as one
that can be used as an enhancement, not to enhance a defendant‟s sentence more than
once for a single prison confinement where there were multiple counts”].) As such,



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defendant‟s one-year enhancement pursuant to section 667.5, subdivision (b) must be
stricken.
                                      DISPOSITION
       Defendant‟s convictions for assault with force likely to produce great bodily
(count II) and child endangerment (count V) are reversed and their attached
enhancements stricken. Defendant‟s one-year enhancement pursuant to section 667.5,
subdivision (b) is also stricken. The case is remanded to the trial court for resentencing.



                                                    ROBIE         , J.



We concur:



      NICHOLSON          , Acting P. J.



      DUARTE          , J.




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