Filed 1/27/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G056850

        v.                                           (Super. Ct. No. 15CF0401)

EMMANUEL COTA,                                       OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Maria D.
Hernandez, Judge. Affirmed in part, reversed in part, and remanded with directions.
                  Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
                                    *          *          *
              A jury convicted defendant Emmanuel Cota of assault with a deadly
                                                  1
weapon (Pen. Code, § 245, subd. (a)(1); count 1) and assault with force likely to produce
great bodily injury (§ 245, subd. (a)(4); count 2). As to both counts, the jury also found
defendant personally inflicted great bodily injury upon the victim. (§ 12022.7.)
Defendant was sentenced to state prison for a total term of six years, comprised of three
years for assault with a deadly weapon in count 1 and a consecutive three-year term for
the great bodily injury enhancement attached to that count. The court imposed a
concurrent sentence on count 2 but stayed the term under section 654.
              On appeal, defendant argues his convictions for assault with a deadly
weapon in count 1 and assault with force likely to cause great bodily injury in count 2 are
different statements of the same offense and his dual convictions violate section 954. He
requests we either vacate his conviction in count 2 or remand his case to the trial court
with directions to strike one of his duplicative convictions and its attending great bodily
injury enhancement. The Attorney General contends defendant’s dual assault convictions
should be affirmed because they are separate offenses legally and factually. We conclude
assault with a deadly weapon and assault with force likely to cause great bodily injury are
different statements of the same offense, and based on the record in this case, we
conclude defendant’s dual assault convictions violate section 954 because both
convictions were based on the same conduct. Accordingly, we vacate defendant’s
conviction for assault with force likely to cause great bodily injury in count 2 and the
great bodily injury enhancement attached to this count. In all other respects, the
judgment is affirmed.




1
              All statutory references are to the Penal Code unless otherwise stated.

                                             2
                                           FACTS


               In August 2014, victim Morales lived in a house in Santa Ana with his
mother and extended family members, which included defendant’s girlfriend Cindy and
her three children. Defendant also lived at the house from time to time, but Morales
never interacted with him.
               The morning of August 1, 2014, Morales, who had recently had a partial
leg amputation and been fitted with a prosthetic leg, was sitting at the kitchen table eating
when Cindy entered the kitchen and started arguing with him. Defendant soon followed,
coming into the kitchen, yelling at Morales, calling him names, and saying he deserved to
have his “ass kicked.” Defendant and Cindy were yelling at Morales from across the
kitchen table when Morales stood up and, holding by his side a knife he was using to eat,
told them to leave him alone. Defendant picked up a heavy, metal chair and swung it at
Morales, hitting Morales’s left arm as Morales threw his arm up to block the chair. The
blow fractured Morales’s left wrist in three places. Morales told the responding officer
that defendant also hit him in the left leg with the chair, but by the time of trial, he could
not remember being hit in the leg. Defendant punched Morales in the face, causing a
small cut to his lip. Morales went to the hospital and later underwent surgery to repair
the injury to his wrist.
               Defendant was charged with assaulting Morales with a deadly weapon, the
metal chair (§ 245, subd. (a)(1)), in count 1 and assaulting Morales by means of force
likely to cause great bodily injury (§ 245, subd. (a)(4)) in count 2. It was alleged as to
both counts that defendant personally inflicted great bodily injury upon Morales in the
commission of the offenses. (§ 12022.7, subd. (a).) In arguing the case to the jury, the
prosecutor asserted defendant was guilty of committing an assault with a deadly weapon
in count 1 based on his act of hitting Morales with the metal chair. The prosecutor told
the jury that the charge of assault with force likely to cause great bodily injury in count 2

                                               3
was “very, very similar to count 1” with almost identical elements. The jury convicted
defendant of both counts and found true the great bodily injury enhancement as to both.


                                       DISCUSSION


              Defendant contends his dual aggravated assault convictions for assault with
a deadly weapon in count 1 (§ 245, subd. (a)(1)) and assault with force likely to cause
great bodily injury in count 2 (§ 245, subd. (a)(4)) violate section 954 because he was
convicted of two statements of the same offense and both were based on the same
conduct. The Attorney General responds with two arguments. First, the Attorney
General asserts “the Legislature unambiguously intended both provisions to be different
offenses” and therefore defendant was properly convicted of both counts of assault.
Second, the Attorney General contends, in the alternative, that it is possible the jury
convicted defendant of assault with force likely to cause great bodily injury in count 2
based on his act of punching Morales in the face, and, therefore, the factual basis for
count 2 was different than that in count 1. We disagree with both of the Attorney
General’s arguments.
                                                        2
              We begin our analysis with section 954, which “‘authorizes multiple
convictions for different or distinct offenses, but does not permit multiple convictions for
a different statement of the same offense when it is based on the same act or course of
conduct.’” (People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana).) Our Supreme Court
has advised that whether statutory provisions “define different offenses or merely

2
              Section 954 states in pertinent part: “An accusatory pleading may charge
two or more different offenses connected together in their commission, or different
statements of the same offense or two or more different offenses of the same class of
crimes or offenses, under separate counts . . . . The prosecution is not required to elect
between the different offenses or counts set forth in the accusatory pleading, but the
defendant may be convicted of any number of the offenses charged . . . .”

                                              4
describe different ways of committing the same offense properly turns on the
Legislature’s intent in enacting these provisions, and if the Legislature meant to define
only one offense, we may not turn it into two.” (People v. Gonzalez (2014) 60 Cal.4th
533, 537 (Gonzalez).)
              Here, the issue is whether the Legislature defined one aggravated assault
that can be committed either (1) with a deadly weapon or (2) by means of force likely to
cause great bodily injury or whether the Legislature meant to define two separate
offenses. In our efforts to determine the Legislature’s intent, we must “‘harmonize the
various parts of a statutory enactment by considering [them] in the context of the
statutory framework as a whole. [Citation.] Ordinarily, the words of the statute provide
the most reliable indication of legislative intent. [Citation.] However, a statute’s literal
terms will not be given effect if to do so would yield an unreasonable or mischievous
result.’ [Citation.] If ‘“the statutory language is susceptible of more than one reasonable
construction, we can look to legislative history in aid of ascertaining legislative intent.”’”
(Vidana, supra, 1 Cal.5th at pp. 637-638.)
              Although now contained in two separate subparagraphs of subdivision (a)
in section 245, assault with a deadly weapon and assault with force likely to cause great
bodily injury were previously together in the aggravated assault statute. Former section
245 read: “‘Every person who commits an assault upon the person of another with a
deadly weapon or instrument or by any means of force likely to produce great bodily
injury is punishable . . . .’” (In re Mosley (1970) 1 Cal.3d 913, 918, fn. 4.) The Supreme
Court interpreted this language as defining “only one offense” that could be committed in
two different ways, explaining “assault by means of force likely to produce great bodily
injury is not an offense separate from—and certainly not an offense lesser than and
included within—the offense of assault with a deadly weapon.” (Id. at p. 919, fn. 5.)
Although this conclusion was dictum, it is persuasive (People v. Brown (2000) 77
Cal.App.4th 1324, 1336 [“even dictum from our Supreme Court is considered ‘highly

                                              5
persuasive’”]), and for many years it was well-settled that “‘[t]he 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.’” (People v. McGee (1993) 15
Cal.App.4th 107, 114; see People v. Martinez (2005) 125 Cal.App.4th 1035, 1043 [noting
“the statute describes two different ways of committing a prohibited assault”].) Although
this provision subsequently “was designated subdivision (a)” and then subdivision (a)(1)
(In re Jonathan R. (2016) 3 Cal.App.5th 963, 968 (Jonathan R.)), the understanding
remained that section 245, subdivision (a)(1) provided two alternative statements of
aggravated assault. In People v. Aguilar (1997) 16 Cal.4th 1023, our Supreme Court
explained: “the jury’s decisionmaking process in an aggravated assault case under
section 245, subdivision (a)(1), is functionally identical regardless of whether, in the
particular case, the defendant employed a weapon alleged to be deadly as used or
employed force likely to produce great bodily injury; in either instance, the decision turns
on the nature of the force used” except in cases involving an inherently dangerous
weapon. (Id. at p. 1035.)
              In 2011, the Legislature amended section 245, subdivision (a)(1), splitting
it into two separate subdivisions. While assault with a deadly weapon remained in
subdivision (a)(1), assault with force likely to cause great bodily injury was moved to
newly created subdivision (a)(4). (Assem. Bill No. 1026 (2011-2012 Reg. Sess.); Stats.
2011, ch. 183, § 1.) The purpose of the amendment was to make it easier in subsequent
cases to determine whether a defendant’s aggravated assault conviction under section
245, subdivision (a), involved an assault with a deadly weapon or assault with force
likely to produce great bodily injury because certain recidivist provisions (i.e., the “Three
Strikes” law) apply to prior convictions for assault with a deadly weapon but not prior
convictions for assault with force likely to cause great bodily injury. (People v. Brunton
(2018) 23 Cal.App.5th 1097, 1104 (Brunton).) The legislative history for Assembly Bill
No. 1026 (AB 1026) states the legislation: “‘“does not create any new felonies or expand

                                              6
the punishment for any existing felonies. It merely splits an ambiguous code section into
two distinct parts.”’” (Brunton, supra, at p. 1104.)
              This legislative amendment has resurrected the question of whether assault
with force likely to cause great bodily injury (§ 245, subd. (a)(4)) is an offense separate
from assault with a deadly weapon (§ 245, subd. (a)(1)). Two courts to have considered
this issue have ultimately concluded section 954 prohibits a defendant from being
convicted of both based on the same act, but they reached this conclusion by different
paths. In Jonathan R., supra, 3 Cal.App.5th 963, the First Appellate District Court of
Appeal held assault with force likely to cause great bodily injury is an offense separate
from but necessarily included within the offense of assault with a deadly weapon, and,
therefore, the defendant could not be convicted of both the greater and the lesser offense
under section 954. (Jonathan R., at p. 966.) Based on the structure of section 245,
subdivision (a), the Jonathan R. court concluded the Legislature intended to create two
separate assault offenses when it amended section 245, subdivision (a)(1) and moved
assault with force likely to cause great bodily injury to subdivision (a)(4). (Jonathan R.,
at pp. 970-971.) Our colleagues in Division One of this district, however, reached a
different conclusion in Brunton, supra, 23 Cal.App.5th 1097, after considering the
legislative history of AB 1026. Brunton concluded assault with a deadly weapon and
assault with force likely to cause great bodily injury are different statements of the same
aggravated assault offense, and, therefore, dual convictions are prohibited under section
954. (Brunton, at pp. 1106-1107.) We conclude Brunton’s analysis is more persuasive.
              Defendant does not rely on Jonathan R., supra, 3 Cal.App.5th 963 nor does
he argue that his conviction for assault with force likely to cause great bodily injury must
be vacated as a lesser included offense of his conviction for assault with a deadly
weapon. The Attorney General, however, urges us to follow part of Jonathan R., and
find “subdivisions (a)(1) and (a)(4) of section 245” define different offenses. Thus, a
discussion of Jonathan R. is necessary.

                                              7
              In Jonathan R., the juvenile court found true allegations that the minor had
committed an assault with a deadly weapon and an assault with force likely to cause great
bodily injury based on his conduct of stabbing a man during a fight. (Jonathan R., supra,
3 Cal.App.5th at p. 966.) On appeal, the minor argued he was improperly found to have
violated both subparagraphs of subdivision (a) of section 245 because they “merely
specify different ways of committing a single offense.” (Jonathan R., at p. 966.) The
Court of Appeal rejected this argument, relying on Gonzalez, supra, 60 Cal.4th 533, in
which the Supreme Court concluded section 954 permitted a defendant to be convicted of
both oral copulation of an unconscious person and oral copulation of an intoxicated
person under two separate subdivisions of section 288a. (Jonathan R., at pp. 969-971.)
After discussing Gonzalez, the Jonathan R. court found: “The statutory structure of
section 245 is indistinguishable from that of section 288a. Each subdivision of section
245 sets out different circumstances under which a person can commit aggravated
assault, and each subdivision specifies the punishment applicable to those circumstances.
The reasoning of Gonzalez would therefore classify each subdivision as a separate
offense and permit more than one conviction based upon the violation of more than one
subdivision of section 245.” (Jonathan R., at p. 970.) The minor argued otherwise,
relying on the legislative history of AB 1026. (Jonathan R., at p. 971.) The Jonathan R.
court refused to consider the legislative history, explaining: “The rationale of Gonzalez
precludes such an analysis. The court held, in effect, that the Legislature is deemed to
have intended to create separate offenses whenever a statute isolates violations with
separate elements and punishments in separate subdivisions. Under Gonzalez, this
statutory structure was held to be an element of the plain language of the statute, and that
language was held to be unambiguous in creating separately convictable offenses. Given
the absence of ambiguity, expressions of intent in a statute’s legislative history are
irrelevant to its interpretation.” (Ibid.) Although the Jonathan R. court concluded assault
with a deadly weapon and assault with force were separate offenses (id. at p. 970), it

                                              8
nevertheless vacated the finding that the minor committed an assault with force likely to
cause great bodily injury on the grounds that the offense was a necessarily included
                                                           3
offense of assault with a deadly weapon (id. at p. 975).
              Defendant relies on Brunton, supra, 23 Cal.App.5th 1097, to support his
argument that assault with a deadly weapon and assault with force likely to cause great
bodily injury are different statements of the same offense, and, therefore, he suffered
improper dual convictions under section 954. Similar to the situation in Jonathan R., the
defendant in Brunton was convicted of both assault with a deadly weapon and assault
with force likely to cause great bodily injury based on his conduct of choking his
cellmate with a towel. (Brunton, at p. 1099.) On appeal, he argued his two convictions
were different statements of the same offense and violated section 954. (Brunton, at pp.
1099-1100.) The Brunton court disagreed with Jonathan R. “[b]ased on intervening
developments in the law” (id. at p. 1106) and concluded the offenses were different
statements of the same offense and that one of the duplicative convictions should be
vacated (id. at pp. 1105-1108).
              An “intervening development[]” cited by the Brunton court was the
Supreme Court’s decision in Vidana, supra, 1 Cal.5th 632. (Brunton, supra, 23
Cal.App.5th at p. 1106.) In Vidana, the high court was faced with the question of
whether larceny and embezzlement were different statements of the same offense such
that a defendant could not be convicted of both based on the same course of conduct.
(Vidana, at pp. 647-648.) The Supreme Court “undertook a detailed analysis of the

3
               In apparent disagreement with Jonathan R.’s conclusion that assault with
force likely to cause great bodily injury is a lesser included offense of assault with a
deadly weapon, the Attorney General cites People v. Aguayo (2019) 31 Cal.App.5th 758,
which held assault with force likely to cause great bodily injury is not a lesser included
offense, review granted May 1, 2019, S254554. After the Attorney General filed his
brief, on November 20, 2019, the Supreme Court ordered the parties in Aguayo to brief
the issue of whether “assault by means of force likely to produce great bodily injury [is] a
lesser included offense of assault with a deadly weapon.”

                                             9
legislative history” of the larceny and embezzlement statutes before concluding they
“constituted mere restatements of the same offense, even though they ‘have different
elements,’ ‘neither is a lesser included offense of the other,’ and they are found in ‘self-
contained’ statutes.” (Brunton, at pp. 1106-1107.)
              Relying on the analysis in Vidana, the Brunton court concluded, in contrast
to Jonathan R., that “the statutory structure of section 245 is not, by itself, such an
unambiguous expression of the Legislature’s intent that we may not resort to additional
material in ascertaining that intent.” (Bruton, supra, 23 Cal.App.5th at p. 1107.) Review
of the legislative history and prior case law interpreting section 245, subdivision (a)(1), as
setting forth a single aggravated assault offense convinced the Brunton court that “the
Legislature did not intend for its 2011 amendment of section 245 to create two offenses
where the former statute set forth only one.” (Brunton at p. 1107.) The Brunton court
thus concluded “that, when based on a defendant’s single act of using a noninherently
dangerous object in a manner likely to produce great bodily injury, section 245(a)(1) and
(4) are merely different statements of the same offense such that the defendant may not
be convicted of violating both subparts of the subdivision.” (Ibid.)
              We agree with Brunton’s reasoning and conclude one of defendant’s
convictions must be vacated because he was improperly convicted of both assault with a
deadly weapon and assault with force likely to cause great bodily injury based on his act
“of using a noninherently dangerous object in a manner likely to produce great bodily
injury.” (Brunton, supra, 23 Cal.App.5th at p. 1107.)
              The Attorney General asserts Brunton was “wrongly decided” and urges us
not to follow it. He relies on the Supreme Court’s decision in Gonzalez, as the court did
in Jonathan R., and the Supreme Court’s more recent decision in People v. White (2017)
2 Cal.5th 349, in which the court concluded a defendant was properly convicted of both
rape of an intoxicated person under section 261, subdivision (a)(3), and rape of an
unconscious person under section 261, subdivision (a)(4)(A), because the two statutory

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subdivisions described different offenses. (White, at pp. 351-352.) The Attorney General
contends “the text and structure of” section 245, subdivision (a), parallels those at issue in
Gonzalez and White and that application of the analysis employed by the Supreme Court
in those cases leads to the conclusion here that “the Legislature must have intended
assault with a deadly weapon and assault by means of force likely to produce great bodily
injury to be different offenses, because they are defined by different elements, listed in
separate self-contained subdivisions, and found in the same section among other assault
crimes, some of which carry different punishments.” We disagree by echoing Brunton’s
conclusion that “the statutory structure of section 245 is not, by itself, such an
unambiguous expression of the Legislature’s intent that we may not resort to additional
material in ascertaining that intent.” (Brunton, supra, 23 Cal.App.5th at p. 1107.) And as
in Brunton, our review of the legislative history and prior case law convinces us that “the
Legislature did not intend for its 2011 amendment of section 245 to create two offenses
where the former statute set forth only one.” (Ibid.) We also disagree with the Attorney
General’s assertion that the “development” of section 245 “over time further confirms the
Legislature’s intent that each subdivision represent a unique crime,” as we find Brunton’s
                                                                                4
analysis of the legislative history persuasive. (Brunton, supra, at p. 1107.)




4
              The Attorney General contends “the Brunton approach” would bar the
prosecution from charging both aggravated assault offenses and “threatens significant
consequences for the criminal justice system.” The Attorney General misunderstands
section 954. A defendant may still be charged with both assault with a deadly weapon
and assault with force likely to cause great bodily injury when they are different
statements of the same offense, but the defendant may not be convicted of both. (See
Vidana, supra, 1 Cal.5th at p. 637; CALCRIM No. 3516 [“Multiple Counts: Alternative
Charges for One Event—Dual Conviction Prohibited”].)

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              In essence, the Attorney General is asking this court to reach a conclusion
unlike that in either Jonathan R. or Brunton—that assault with force likely to cause great
bodily injury is an offense separate from and not a lesser included offense within assault
with a deadly weapon. We decline the invitation absent further guidance from the
Supreme Court, as such a conclusion would be contrary to the high court’s dictum in
Mosley. We conclude defendant’s convictions for assault with a deadly weapon and
assault with force likely to cause great bodily injury violate section 954 because they are
different statements of the same offense of aggravated assault and both were based on the
same conduct.
              The Attorney General alternatively argues that even if assault with a deadly
weapon and assault with force likely to cause great bodily injury are two statements of
the same offense, defendant’s dual convictions were proper nonetheless because they
were not based on the same act. The Attorney General asserts the jury could have
convicted defendant of assault with force likely to cause great bodily injury based on his
act of punching Morales in the face. In theory yes, but that is not how the prosecutor
argued the case to the jury. Although the prosecutor did not explicitly argue the factual
basis for the charge of assault with force likely to cause great bodily injury, looking at the
prosecutor’s closing and rebuttal arguments as a whole, it is clear to us, and would have
been clear to the jury, that the prosecutor was relying on defendant’s act of hitting
Morales with the chair as the basis for both assault charges.
              The prosecutor began his closing argument by summarizing the evidence as
showing that defendant “took this chair and struck victim Morales breaking his wrist in
three places, punched him in the face and threw him to the ground . . . .” The prosecutor
argued defendant was guilty of assault with a deadly weapon in count 1 based on his
action of hitting Morales with the chair. The prosecutor did not identify separate conduct
for the charge of assault with force likely to cause great bodily injury in count 2, but
instead told the jurors: “Count 2 is very, very similar to count 1. It is assault with force

                                             12
likely to cause or produce great bodily injury. The elements are identical to count 1. The
only difference is that in count 1 it is an assault with a deadly weapon and in count 2 it is
assault with force likely to produce great bodily injury. [¶] So that is the distinction
between counts 1 and 2. They are very, very similar in their elements.” The prosecutor
also urged the jury to find as to both counts that defendant personally inflicted great
bodily injury, arguing that “an injury that requires a surgery like in this case, is great
bodily injury.” The prosecutor did not argue that the quarter centimeter laceration to
Morales’s lip resulting from the punch was great bodily injury.
              Contrary to the Attorney General’s assertion, this is not a situation in which
the jury was instructed “with both a proper theory and a factually inadequate one.” Here,
there was not an inadequacy of factual proof as to count 2. (People v. Aledamat (2019) 8
Cal.5th 1, 7 [“a ‘“factually inadequate theory”’” is a theory unsupported by the
evidence].) The evidence of defendant striking Morales with the chair was sufficient to
support defendant’s conviction for assault with force likely to cause great bodily injury in
count 2. The problem is that the prosecutor also relied on this act to support the charge of
assault with a deadly weapon in count 1. For hitting Morales with the chair, defendant
was convicted of both assault with a deadly weapon and assault with force likely to cause
great bodily injury, violating section 954.
              We vacate defendant’s conviction for assault by means of force likely to
cause great bodily injury in count 2 and strike its attending great bodily injury
enhancement. This outcome does not impact defendant’s total sentence as the term on
count 2 was stayed under section 654.


                                       DISPOSITION


              The conviction for assault with force likely to cause great bodily injury (§
245, subd. (a)(4)) in count 2 is vacated and the great bodily injury enhancement

                                              13
(§ 12022.7, subd. (a)) on count 2 is stricken. The trial court is directed to prepare an
amended abstract of judgment reflecting the judgment as modified in this opinion and
forward a certified copy to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.




                                                  IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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