Filed 9/12/13 P. v. Navarro CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              B234703

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. GA077436)
         v.

LIBRADO NAVARRO et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County,
Suzette Clover, Judge. Affirmed and modified with directions.
         David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant Librado Navarro.
         Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant Mauricio Vasquez.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

                                          ______________________________
       Librado Navarro (Navarro) and Mauricio Vasquez (Vasquez) appeal from the
judgments entered following a jury trial. Navarro was convicted of two counts of
felonious assault (former Pen. Code, § 245, subd. (a)(1)1; counts 2 and 4) and of hit and
run, a misdemeanor (Veh. Code, § 20002, subd. (a); count 3). Vasquez was convicted of
two counts of felonious assault (§ 245, subd. (a)(1); counts 1 and 2) and of simple assault,
a misdemeanor (§ 241, subd. (a); count 4). As to each appellant, the trial court imposed
two concurrent, lower terms of two years in state prison. For the misdemeanors, it
sentenced appellants to respective terms of five days and one day in the county jail, with
credit for time served.
       Navarro contends the jury verdicts do not conform to the prosecutor’s factual
theory of the case, and appellants join in making a number of contentions concerning the
sentencing proceedings.
                                    BACKGROUND
       Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the trial evidence established the following.
       1. The trial evidence.
          a. The prosecution’s case-in-chief.
       At about 2:00 a.m. on May 6, 2009, following Cinco de Mayo celebrations,
brothers Miguel Keener (Keener) and David Sandoval (Sandoval) walked their cousin,
Maritza Toscano (Toscano), and Keener’s girlfriend, Cynthia Vasquez (Cynthia V.), to
Cynthia V.’s Honda. During the evening, they had been celebrating with others in the



1
       All further statutory references are to the Penal Code unless otherwise indicated.
       In 2009, section 245 provided that both assault with a deadly weapon, other than
with a firearm, and assault by means of force likely to produce great bodily injury were
the crimes proscribed in subdivision (a)(1) of that section. (Stats. 2004, ch. 494 (A.B.50),
§ 1.) Subsequently, section 245 was amended to provide that assault with a deadly
weapon other than a firearm was the crime proscribed in subdivision (a)(1) and that
assault by means of force likely to produce great bodily injury was the crime proscribed
in subdivision (a)(4). The punishment for these crimes was not changed. (See Stats.
2011, ch. 15 (A.B. 109), § 297, eff. April 4, 2011, operative Jan. 1, 2012.)

                                             2
Ambiente night club on Garfield Avenue in Alhambra and drinking alcoholic beverages.
Keener testified that he was not intoxicated; Sandoval admitted intoxication but said he
was oriented as to time and the surrounding events. They were walking down an alley
behind the nightclub to its parking structure where Cynthia V.’s Honda was parked on the
first level. The area was crowded with young people after the nightclub had closed.
        Navarro, the driver, and Vasquez, the right front passenger, drove up in a Lexus.
They were driving the area looking for women and flirted with Toscano or Cynthia V.
Keener told them to get going. Then Sandoval said something similar. Vasquez said
“What are you going to do about it?” and Sandoval replied, “This is over. Take it home,”
or “You don’t want this.” Vasquez responded by using a backhand fist to rap Sandoval
on the chin with his knuckles. Sandoval turned and started punching Vasquez through
the open window of the Lexus. Vasquez tried to get out, but Sandoval leaned on the
door.
        As the youths exchanged blows through the car window, Navarro sped up and
drove up the parking structure ramp to an area near the Honda and parked in a stall.
Cynthia V. dragged Keener away from the fray to her Honda. There was conflicting
evidence concerning whether at that point, Keener opened the Honda’s trunk; at trial
Keener denied having done so.
        Sandoval jogged to the Lexus’s passenger window as he believed parking the
Lexus meant that appellants were going to come after him. Vasquez and Sandoval again
exchanged blows through the window, and Sandoval leaned on the Lexus’s passenger
door, preventing Sandoval from getting out of the Lexus. Eventually, Vasquez got out.
However, as soon as Navarro parked the Lexus, Navarro quickly walked to the Lexus’s
passenger side. He blindsided Sandoval with a blow over the right eye, knocking
Sandoval to the ground. As Navarro approached Sandoval, Cynthia V. saw an object in
Navarro’s hand that she described as a closed knife that was burgundy in color. She
yelled out that the driver had a knife.




                                             3
       Sandoval did not see Navarro but looked up after he fell and determined that
Navarro was the person who had blindsided him. Vasquez and Navarro beat Sandoval
two-on-one, and Vasquez kicked Sandoval at least twice in the face, preventing him from
standing. During the beating, Navarro was crouched over Sandoval, and Sandoval
recalled Navarro hitting him with two downward blows. Navarro had an “object” in his
hand when he hit Sandoval. Sandoval yelled out to his brother Keener for help.
Toscano, the brothers’ cousin, ran over and punched at Vasquez. Keener ran over with a
four-pronged tire iron in hand and swung it in Vasquez’s direction, but missed.
A bystander immediately removed the tire iron from Keener’s hand.
       Keener, now unarmed, punched and pushed appellants away from Sandoval, who
was still on the ground. Keener exchanged a few blows with Vasquez. Suddenly,
Navarro punched Keener in the ribs. Keener looked at him and saw that Navarro had a
knife with a black handle and a 3- to 4-inch blade in his hand. Keener helped Sandoval
up and told him, “Be careful. This guy has a knife.” Vasquez and Navarro backed off,
and one of them said, “Let’s go.” Appellants quickly entered the Lexus and drove off.
       While driving off, Navarro backed into a BMW, causing damage, but Navarro
failed to stop and identify himself.
       Immediately after the fight, Keener noticed that he was bleeding and discovered a
stab wound in his ribs, the same location where Navarro had punched him. Sandoval
discovered that he had two straight, clean, shallow slices to his shoulder and in the area of
his eyebrow, the same areas where Navarro had hit him with some instrumentality.
       A bystander, Edwin Alvarez (Alvarez), the night club’s disc jockey, testified that
he saw the original fisticuffs but could not say who had initiated the physical interaction.
Then he saw appellants punching and kicking, two-on-one, Sandoval for 40 seconds to a
minute. Sandoval was on the ground, and Sandoval could do little but fend them off.
During the melee, Alvarez saw one of the appellants holding a knife or a screwdriver in
hand, but did not know whether the knife was used to strike anyone or was merely used
as a “scare tactic.” His impression was that when Keener joined the melee, Keener was
merely breaking up the fight.


                                             4
      The BMW’s driver gave the police the Lexus’s license plate number. Alhambra
Police Officer Tai Seki (Officer Seki) contacted Keener and Sandoval at the hospital.
Keener was treated by a doctor there and given two staples to close the stab wound to his
torso. Sandoval was not treated. Officer Seki took photographs of Keener’s and
Sandoval’s wounds, and at trial the photographs were entered into evidence.
      Shortly after the stabbing, Keener identified another youth but not Navarro in a
photographic lineup. Keener testified that immediately after the melee, he believed it
was Vasquez who had stabbed him. However, after talking with the other witnesses, he
had concluded that it was actually Navarro who was his assailant.
           b. The defense.
      At trial, Navarro declined to testify. His trial counsel argued self-defense.
      In defense, Vasquez testified, claiming self-defense and defense of others. He said
that Sandoval started the melee by punching him inside the Lexus in the alley; he denied
initiating the physical force. He explained that one of the women walking in the alley
had spoken to him. Keener and then Sandoval approached and made comments to
appellants. Sandoval pummeled Vasquez several times through the passenger window,
and Vasquez parried the blows. Navarro parked in the structure. Sandoval ran to the
Lexus, again pummeling Vasquez through the window, preventing him from getting out.
Vasquez eventually got out the door. He saw Sandoval in a crouched position, lunging at
Navarro. Sandoval punched Navarro, and Navarro swung and missed Sandoval.
Sandoval punched Navarro again, and Vasquez kicked Sandoval in order to defend
Navarro.
      As appellants fought Sandoval two-on-one, Keener approached and swung a tire
iron at Navarro and missed. Keener then swung the tire iron at Vasquez, and Vasquez
pulled out his black-handled work knife, which had a half-inch to one-inch blade. He
used his knife only to defend himself and Navarro by slicing Keener in the ribs. Vasquez
yelled, “Let’s go,” and appellants quickly drove off. The two phases of the fight, before
and after Navarro parked the Lexus, each lasted only two to three minutes.



                                            5
       At trial, Vasquez admitted that he had been drinking alcoholic beverages and
denied that Navarro had backed into or damaged the BMW.
       A month after the incident, when Vasquez was interviewed by Officer Seki,
Vasquez failed to mention that he used the knife in the melee. He told the officer that he
exchanged punches with Sandoval before Navarro parked and admitted that Navarro
came around the Lexus, swung at Sandoval and knocked Sandoval to the ground. During
the interview, Vasquez also told the officer that Keener swung the tire iron once and only
in Navarro’s direction.
       2. The motion for new trial and the sentencing proceedings.
          a. The motion for new trial.
       On the date set for sentencing, pursuant to section 1181, subdivision 6, appellants
moved for a new trial on grounds the evidence was insufficient to support the verdicts.
At the hearing on motion, trial counsel argued the evidence indicated Sandoval had
started the altercation, Vasquez was pinned in the Lexus until it parked, and he and
Navarro acted in self-defense or defense of others. Vasquez’s trial counsel urged that the
jury “simply got it wrong” and asked for a new trial.
       The prosecutor responded that the evidence amply supported the verdicts. At best,
the instant case was one of mutual combat, and the trial court had properly instructed the
jury as to self-defense and defense of others. The trial evidence had demonstrated that
after parking, appellants kicked and pummeled Sandoval two-on-one. Vasquez never
retreated so as to enable him to assert self-defense after mutual combat. Keener acted in
defense of Sandoval in breaking up the melee.
       The trial court denied the motion. It commented that in its view, Sandoval started
“all of this.” It said that it had researched the standard for granting a new trial.
Notwithstanding its personal view of the evidence, it had concluded that there were a
“myriad of problems” that might result in reversal on appeal, but “those issues [did not]
meet the standard of granting a new trial.”




                                              6
          b. The sentencing proceedings.
       The trial court said that it had considered appellants’ sentencing memoranda and
probation reports, as well as the letters from community members who wrote to the trial
court in support of appellants.
       The probation officer stated in the probation report that Navarro was 25 years of
age and had three 2006 and 2007 misdemeanor convictions for driving with a suspended
driver’s license. (Veh. Code, §14601.) Navarro also had a more recent conviction for
driving with more than 0.08 percent by weight of alcohol in his blood. (Veh. Code,
§ 23152, subd. (b).) Navarro lived with his parents in El Monte and was attending a fifth
year of college at the California State University San Bernardino. He worked for a
Whittier heating and air business.
       The probation officer asserted the following aggravating factors: (1) Navarro
played a significant role in the offense, (2) his conduct indicated that he was a threat to
the community and (3) his prior convictions were numerous or of increasing seriousness.
Victim Keener had informed the probation officer that he could not walk for two weeks
after the attack and he had made a full recovery from the stabbing. Both victims said
they had missed work at least for several days. Nevertheless, the probation officer
concluded, without a statutory prohibition, Navarro was suitable for probation as (1) he
had a minimal criminal history, (2) he would be adequately supervised in the community
and (3) he may benefit from the rehabilitative resources available on probation. As the
offense was serious, if probation was granted, the probation officer recommended an
order that Navarro spend a year in the county jail.
       Vasquez’s probation report said that he was 25 years old and had no criminal
history. He denied a history of drug or excessive alcohol use. He lives with his parents
in Mira Loma and grew up in El Salvador before coming to the United States in 1990.
He is single and a high school graduate with some community and junior college.
He intends to return to college to study business administration. He had been employed
for the last three years, initially as a salesman and most recently as an office assistant.
Absent a statutory prohibition, the probation officer recommended a grant of probation


                                               7
due to (1) the lack of record, (2) Vasquez could be adequately supervised in
the community and (3) he may benefit from the rehabilitative resources available while
on probation. In mitigation, the probation officer cited his lack of a criminal record.
In aggravation, the probation officer proffered the following aggravating factors: (1) the
violent nature of the offense and that (2) the conduct indicates Vasquez presents a serious
danger to society. Were Vasquez to be imprisoned, the probation officer recommended
an upper base term. If probation were to be granted, the probation officer suggested he
be required to spend a year in the county jail as a condition of probation.
       Additionally, the probation officer stated in his reports that Officer Seki had no
objection to grants of formal probation. The officer told the probation officer that he
believed that Navarro was Keener’s assailant, and Vasquez was taking the blame for the
stabbing. 2


2
        Navarro’s sentencing memorandum requested a grant of formal probation
and community service. It asserted that Navarro’s was an “unusual case” (§ 1203,
subd. (e)(2)) permitting probation based on mitigating factors: (1) the incident was
spontaneous and impulsive, as contrasted with being “criminal[ly] sophisticat[ed]”
(Cal. Rules of Court, rule 4.414(8)); (2) the crime was a result of “great provocation,
which is unlikely to recur” (Cal. Rules of Court, rule 4.414(1)(7)); (3) Navarro had no
felony history or history of violence (Cal. Rules of Court, rule 4.414(b)(1)); (4) he is
willing to comply with the terms of probation and is capable of doing so (Cal. Rules of
Court, rule 4.414(b)(3)); (5) his ability to continue with graduate school may be hindered
by imposition of a prison term (Cal. Rules of Court, rule 4.414(b)(6)); and (6) if not
imprisoned, he was not a danger to others (Cal. Rules of Court, rule 4.414(b)(8)). It
revealed that Navarro is a full-time student in kinesiology, taking his last few classes in
order to graduate before hopefully attending graduate school in exercise science at
California State University, Fullerton. One of the letters attached to the sentencing
memorandum indicated that in 2003, Navarro attended Menlo College in Atherton on a
football or baseball scholarship. He then transferred to California State University,
San Bernardino.
       Vasquez’s sentencing memorandum requested a grant of formal probation.
Vasquez indicated that he is a United States citizen. Since January 2009 he has been
employed at Landjet Motor Carriers, Inc. He asserts that his is an “unusual case”
(§1203, subd. (e)(2)) and set forth the following mitigating factors: (1) he participated in
the offense under circumstances of great provocation, not amounting to a defense, in that
he was being pummeled while belted into the Lexus’s car seat and then later only acted in

                                             8
       At the outset, the trial court gave the parties an opportunity to comment on all
matters relevant to sentencing. Navarro and Vasquez requested a section 17,
subdivision (b), reduction in the felonious assault charges, wobblers, to misdemeanors.
Navarro’s counsel proffered that the motion was supported not just by the lack of a
significant criminal history, but also as there were “problems with the case.” He also
noted there were defense witnesses who had appeared for the sentencing proceedings but
that numerous continuances had prevented their attendance for the actual sentencing
hearing.
       The trial court acknowledged that continuances had deterred the defense
character witnesses from appearing at sentencing. It said that it would consider
that all persons submitting letters on appellants’ behalf would have appeared and
testified favorably to “[appellants’] good citizenship.” It said “Sadly, I think . . . Navarro
and . . .Vasquez were at the wrong place at the wrong time. I don’t think they were the
aggressors. But having not found grounds for a new trial, I believe that this court has to




self-defense with the knife when he was confronted by Keener; (2) he has no recent
record of committing crimes of violence; (3) he is young and has no prior criminal
record; (4) the crime is unlikely to reoccur; (5) the crime fails to demonstrate criminal
sophistication; (6) he is willing to comply with the terms and conditions of probation;
(7) his parents depend on him to assist them in paying the mortgage on the family home,
and if incarcerated, he will lose his job; (8) imprisonment will affect his plans to attend
college; and (9) imprisonment is unnecessary to protect public safety. (Cal. Rules of
Court, rule 4.414.) In a statement attached to the sentencing memorandum, Vasquez
indicated that financial issues had interfered with his high school football ambitions and
getting a football scholarship for college. Attending community college was interrupted
as he had to assist the family in paying for medical care for his mother.
        In the People’s Sentencing Memorandum, relying on California Rules of Court,
rule 4.414, the prosecutor urged the following aggravating factors: (1) the crimes were
serious in nature; (2) appellants used weapons; (3) Sandoval was particularly vulnerable
as he was outnumbered two to one and was unarmed; (4) Sandoval and Keener suffered
physical injury, and Keener incurred medical costs in treating his stab wound; and
(5) appellants’ conduct demonstrated a willingness to use deadly weapons, thus posing a
danger to the community. In mitigation, the prosecutor acknowledged that Navarro had a
minimal record and Vasquez had none.

                                              9
live with the jury’s findings.” It told appellants that it also had researched the issue of
reductions in the charges but did not “think that it was appropriate.”
       The trial court asked whether trial counsel had anything to add before it
pronounced sentence. Vasquez’s trial counsel requested the sentences “be stayed so that
at some point later, [appellants could] request the court to reduce it to misdemeanors.”
The trial court said that it would consider the request. The prosecutor objected to a
section 17, subdivision (b), reductions, in that the offenses were serious assaults, there
were injuries and the assault with a deadly weapon convictions constituted “strikes”
under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
       The trial court had appellants waive formal arraignment and time for sentencing
and commenced sentencing.
       The trial court acknowledged that it had discretion to grant probation as this was
an “unusual case.” (§ 1203, subd. (e)(2).) But it explained: “So given the facts of this
case, [Navarro] and [Vasquez] are ineligible for probation. Not so much the facts of the
case, but the nature of the charges and the findings of the jury and the jury’s verdict.”
       The trial court enumerated the jury’s verdicts. It found that factors in mitigation
outweighed those in aggravation. It referred to appellants’ lack of a criminal history and
other factors in mitigation: (1) the offenses were not sophisticated, planned or committed
with professionalism; (2) the offenses constituted a spontaneous event unlikely to
reoccur, and that it could not say the same with respect to Sandoval and Keener;
(3) neither appellant was the aggressor; (4) nor had appellants engaged in prior
conduct which would indicate they were a danger to society. Based on these factors,
the trial court imposed lower terms of imprisonment respectively, on Navarro for counts
2 and 4, and on Vasquez for counts 1 and 2, and imposed the terms concurrently.
It imposed time served for Navarro as to the count 3 misdemeanor of hit and run and for
Vasquez as to the count 4 simple assault.




                                              10
       Having imposed the prison terms, the trial court ordered a stay of execution of
those terms pending appeal and set bail on appeal at $500 for each appellant. The trial
court explained at length its reasoning for granting bail on appeal. Inter alia, it
remarked that in its view, mutual combat was not truly at issue at the trial. It claimed
that it regretted not having instructed the jury further on mutual combat. It said,
“There is no question whatsoever, based on the evidence viewed most favorably to the
People, that . . . Sandoval started all of this. [Sandoval] was somewhere he should not
have been. He was under the influence of alcohol hours and hours and hours after this
event. [He] would be well-served by an alcohol program [but ] . . . [t]he court has no
jurisdiction over him.” It asserted that it respected the People’s right to exercise their
charging function but this was a case in which it was impossible for a trier of fact,
including the jury, to determine who was the victim and who was the lawbreaker.
Keener’s testimony and his out-of-court statements with respect to his use of a tire iron
contained numerous inconsistencies, and the tire iron’s use could have caused death.
       When the trial court indicated that it had concluded the sentencing proceedings,
the prosecutor asked for an opportunity to respond concerning sentence and the bail.
The trial court told him it was “[in]appropriate at this time.” The trial court finished its
remarks and told the prosecutor that it did not intend to cut him off, but once the trial
court had made its decision, the time for argument “and so forth” had passed. The
prosecutor complained that he believed he had had no opportunity to litigate bail on
appeal. The trial court told the prosecutor that he “could have asked for that when the
court indicated that was its intention.” The trial court then made orders concerning
restitution and terminated the proceedings.




                                              11
                                     CONTENTIONS
       1. Sufficiency of the evidence.
       Navarro contends that the jury verdicts appear to reflect a jury conclusion that
Navarro assaulted Sandoval with a knife (counts 2 and 4) and Vasquez assaulted Keener
with another knife (count 1). He argues the evidence fails to support the finding implicit
in the verdicts that two knives were used. Also, he urges that a two-knife theory is at
odds with the factual claims the parties made during final argument as to how the assaults
occurred. Navarro urges that accordingly, his convictions in counts 2 and 4 must be
reversed.
            a. Standard of review.
       In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. “ ‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]’ ” (People v. Ochoa, supra, 6 Cal.4th at p. 1206; see Jackson v. Virginia
(1979) 443 U.S. 307, 319.)
       “ ‘Although we must ensure the evidence is reasonable, credible, and of solid
value, nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa, supra,
6 Cal.4th at p. 1206.)
       The same standard of review applies to circumstantial evidence and direct
evidence alike. (People v. Prince (2007) 40 Cal.4th 1179, 1251.)




                                              12
          b. Factual background.
       In count 1, the amended information alleged appellants violated section 245,
subdivision (a)(1), the crime of assault with a deadly weapon, in that they “willfully and
unlawfully commit[ted] an assault” on Keener “with a deadly weapon, to wit, a knife.”
In count 2, the information alleged appellants violated section 245, subdivision (a)(1), the
crime of “assault by means likely to produce great bodily injury,” in that they “willfully
and unlawfully commit[ted] an assault . . . by means likely to produce great bodily
injury” on Sandoval. Count 3 alleged a misdemeanor hit and run offense.
       Before Vasquez’s defense testimony, the People moved to amend the information,
proposing a count 4, that appellants committed an “assault with a deadly weapon, to wit,
a knife” on Sandoval pursuant to section 245, subdivision (a)(1). The trial court granted
the motion.
       In closing argument, the prosecutor urged that there was no issue of identity
presented by the evidence – both appellants were involved in the melee. The prosecutor
explained count 1 concerning Keener and counts 2 and 4 concerning Sandoval only
applied to the melee as it occurred subsequent to Navarro parking the Lexus. There was
the two-on-one event after Navarro hit Sandoval in the head. Sandoval was on the
ground, and Vasquez kicked him and Navarro punched him. The prosecutor urged,
“The assault did not stop there.” He argued that Navarro had an object in hand that he
was using on Sandoval. Circumstantially, the object had to have been “[t]he knife”
Cynthia V. had seen in his hand. Keener then rushed to Sandoval’s aid, and he was
punched in the ribs, a blow that Keener later discovers is a knife wound. And Keener
saw Navarro with the knife in hand immediately thereafter. Sandoval’s wounds were
straight and clean, the type one would expect would be left by the use of a knife. The
prosecutor acknowledged that Vasquez’s testimony was that he had the knife and used it
only on Keener. However, the prosecutor argued to the jury that Vasquez’s testimony
was incredible in some parts, and it did not matter which appellant actually wielded the
knife. If one man was the direct perpetrator, the other was equally liable as he had aided
and encouraged the assault.


                                            13
       In defense, trial counsel urged Vasquez acted in self-defense by stabbing Keener
when he was confronted with the tire iron. They claimed no assault with a knife on
Sandoval and that appellants merely acted in self-defense or defense of others in response
to Sandoval’s attack on Vasquez.
       The trial court instructed the jury as to the elements of both prongs of the offense
of felonious assault and as to lesser offenses of simple assault, as well as to the relevant
principles of aiding and abetting, mutual combat, the duty to retreat, self-defense and the
defense of others.
       After deliberations, the jury returned its verdicts. With respect to the assault
charges, in count 1 (stabbing Keener), the jury acquitted Navarro of assault and lesser
included offenses, but found Vasquez guilty of assault with a deadly weapon. In count 2
(the two-on-one melee after Navarro parked the Lexus), it convicted both appellants of an
assault on Sandoval by means likely to produce great bodily injury. In count 4 (the use of
a knife in assaulting Sandoval), it returned verdicts finding Navarro guilty of assault with
a deadly weapon and found Vasquez guilty of a lesser included offense of simple assault.
          c. Discussion.
       Navarro’s contention lacks merit. Insofar as Navarro’s contention is a claim of
insufficient evidence, it fails. It is irrelevant to the validity of the verdicts whether one or
two knives were used during the events underlying the assaults. When an appellant raises
an issue of insufficient evidence, the question this court addresses is not whether a two-
knife theory was consistent with the prosecutor’s and trial counsels’ closing arguments.
It is whether the trial evidence is of solid and credible value in supporting a rational
conclusion by the jury that the offenses charged occurred.
       The witnesses testifying at trial agreed that Vasquez and Navarro engaged in a
joint beating and kicking of Sandoval after Navarro blindsided Sandoval. Before the
joint beating, Cynthia V. saw Navarro with a closed pocket knife in hand. During the
two-on-one beating, Alvarez saw one of the assailants holding a knife or screwdriver.
Sandoval had wounds that could have been inflicted with a short-bladed knife, and he
testified that Navarro was hitting him during the melee with an object. Keener testified to


                                              14
circumstances suggesting that Navarro stabbed him, and he saw Navarro immediately
thereafter with a knife in hand. Vasquez did testify and admitted that he had stabbed
Keener, and he claimed that he did not draw his knife until Keener approached with the
tire iron. There was evidence that Keener may have misidentified Navarro as his
assailant, but the jury believed Keener’s trial testimony, not that of Vasquez. On this
record, the totality of the trial evidence supports a rational conclusion by the jury that
Navarro committed the felonious assaults alleged to have occurred against Sandoval in
counts 2 and 4.
       Further, the authorities cited by Navarro in support of his claim are inapposite.
(See e.g., Chiarella v. United States (1980) 445 U.S. 222, 235-236; People v. Guiton
(1993) 4 Cal.4th 1116, 1129.) The rule in the Chiarella-Guiton line of cases was recently
set out in People v. Harris (1994) 9 Cal.4th 407, 419 and fn. 7: “ ‘[W]hen the
prosecution presents its case to the jury on alternate theories, some of which are legally
correct and others legally incorrect, and the reviewing court cannot determine from the
record on which theory the ensuing general verdict of guilt rested, the conviction cannot
stand.’ [Citation.] In using the terminology ‘legally incorrect theory,’ [a court refers]
specifically to instructional error, or a ‘legally incorrect’ theory of the case which, if
relied upon by the jury, could not as a matter of law validly support a conviction of the
charged offense.” (Ibid., fn. omitted.) As Navarro’s claim is in the nature of a claim of
insufficient evidence, we have no reason to utilize this principle in determining the
contention at hand.
       And, it is settled that inconsistent verdicts provide no grounds for a reversal where
there is sufficient evidence to support the verdicts. “The law generally accepts
inconsistent verdicts as an occasionally inevitable, if not entirely satisfying consequence
of a criminal justice system that gives defendants the benefit of a reasonable doubt as to
guilt and juries the power to acquit whatever the evidence.” (People v. Palmer (2001)
24 Cal.4th 856, 858, 860; see also Standefer v. United States (1980) 447 U.S. 10, 25-26;
see People v. Superior Court (Sparks) 48 Cal.4th 1, 12-13.)



                                              15
       The evidence, albeit partially circumstantial, is sufficient to support verdicts of
assault by means of force likely to produce great bodily injury in count 2 and the assault
with a deadly weapon, a knife, in count 4.
       2. Motion for a new trial.
       Vasquez contends the trial court used the wrong standard and abused its discretion
in ruling on his motion for a new trial. Navarro joins in the contention to the extent it is
of benefit. We find no abuse of discretion.
           a. Standard of review.
       Under section 1181, subdivision 6, a court may grant a defendant’s new trial
motion when the verdict “is contrary to law or evidence . . . .” The proper standard is
whether the court itself is convinced the charges have been proved beyond a reasonable
doubt. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) As the Supreme Court has
explained: “The court extends no evidentiary deference in ruling on a section 1181,
[subdivision (b),] motion for new trial. Instead, it independently examines all the
evidence to determine whether it is sufficient to prove each required element beyond a
reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’ [Citations.] If the
court is not convinced that the charges have been proven beyond a reasonable doubt, it
may rule that the jury’s verdict is ‘contrary to [the] . . . evidence.’ [Citations.]” (Ibid.,
italics in original.)
       “The trial court ‘should [not] disregard the verdict . . . but instead . . . should
consider the proper weight to be accorded to the evidence and then decide whether or not,
in its opinion, there is sufficient credible evidence to support the verdict.’ ” (People v.
Davis (1995) 10 Cal.4th 463, 524.) “ ‘ “The determination of a motion for a new trial
rests so completely within the court’s discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly appears.” ’ ” (Ibid.)




                                              16
          b. Discussion.
       Before ruling on the motion for new trial, the trial court read and considered
appellants’ written motions discussing the above legal standard. The trial court said that
it had researched the motion, indicating it was well aware of the appropriate legal
standard. The trial court did not recite the standard into the record, but this court must
presume the trial court was aware of and followed applicable law in exercising its
discretion. (People v. Moseley (1997) 53 Cal.App.4th 489, 496.)
       Even assuming that Sandoval started what turned into a physical altercation, denial
of the motion is supported by the record. If indeed Sandoval had started the fight, it was
appellants who reinitiated it and provoked a fight with the intent to create an excuse for
the use of force with a deadly weapon. The fact remains that appellants chose not to
leave the alley after the initial contact. Rather, Navarro drove a short distance into the
parking structure and parked, and appellants got out of the Lexus, a clear indication they
intended to resume the fight. “It is well established that the ordinary self-defense
doctrine – applicable when a defendant reasonably believes that his safety is
endangered – may not be invoked by a defendant who, through his own wrongful conduct
(e.g., the initiation of a physical assault or the commission of a felony), has created
circumstances under which his adversary’s attack or pursuit is legally justified . . . .’
[Citation.]” (People v. Frandsen (2011) 196 Cal.App.4th 266, 273, quoting
In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1; see also People v. Valencia (2008)
43 Cal.4th 268.) Thus, it is a defendant’s provocation to create the excuse to use force or
his “wrongful conduct” that evidences his intent and deprives him of the right to use self-
defense. (People v. Valencia, supra, at p. 288.) Although the assaulted person need not
retreat, he may not reinitiate a fight after it has stopped.
       Here, appellants drove away from Sandoval, who was a pedestrian. Their act of
parking was not simply a refusal to retreat but the initiation of a new physical assault
intended to be directed at Sandoval. Moreover, at least one of appellants had a knife and
appeared ready to use it. The People recognize the argument that appellants should not
have parked is somewhat at odds with the trial court’s later statements at the end of the


                                               17
sentencing hearing about potential jury confusion concerning the principles of mutual
combat. However, the comments were at odds with the trial evidence, and the trial court
gave complete instructions on self-defense, defense of others, mutual combat and the
duty to retreat. There was no evidence that Keener or Sandoval “pursued” appellants as
they drove. Indeed, Keener had walked away with Cynthia V. and Sandoval trotted over
to the Lexus driver’s door only when it became apparent that appellants were parking to
engage in a fight. That appellants, who were in the safety of the Lexus, could somehow
claim self defense after once again initiating contact is contrary to law.
       It is apparent to this court that although the trial court may have decided the case
differently had the parties requested a court trial, it carefully reviewed the evidence
presented to the jury and the verdicts and found the witnesses’ testimony sufficiently
credible to require the jury verdicts to stand.
       The remarks of the trial court later in the sentencing proceedings – (1) “[i]t was
impossible for the trier of fact, including the jury” to determine which of defendants and
victims were at fault, (2) it personally did not believe appellants were the aggressors and
(3) there were inconsistencies in Keener’s claims about the use of the tire iron – were
made in the context of setting out a justification for staying execution of sentence
pending appeal and the setting of bail on appeal. These latter findings do not undermine
the trial court’s ruling on the new trial motion.
       3. Fragmentation of the felonious assault offense alleged in counts 2 and 4.
       Appellants contend the trial court improperly fragmented the felonious assault
offense by charging it alternatively, in the language of both prongs of that statute, in
counts 2 and 4. We agree.
          a. The applicable law.
       Section 954 provides that “[a]n accusatory pleading may charge two or more
different offenses connected together in their commission or different statements of the
same offense . . . under separate counts” and the “prosecution is not required to elect
between the different . . . counts set forth in the accusatory pleading . . . .” However,
pursuant to section 954, a defendant may not be convicted of multiple counts of the same


                                              18
offense for the same act. (People v. Coyle (2009) 178 Cal.App.4th 209, 217 (Coyle)
[three counts of murder of the same victim tried on different theories may be alleged, but
the offense of murder may be punished only once; see also People v. Jefferson (1954)
123 Cal.App.2d 219, 221.)
       Former section 245, subdivision (a)(1), provides, as follows: “Any person who
commits an assault upon the person of another with a deadly weapon or instrument other
than a firearm or by any means of force likely to produce great bodily injury shall be
punished by imprisonment in the state prison for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine not exceeding ten thousand dollars
($10,000), or by both the fine and imprisonment.” (Italics added; Stats. 2004,
ch. 494 (A.B.50), § 1.)
          b. Discussion.
       The amended information alleged Keener’s assault by appellants in count 1.
It alleged appellants inflicted on Sandoval force likely to produce great bodily injury in
count 2. At the opening of the defense case, the prosecutor added a count 4, again an
alleged felonious assault in that appellants had assaulted Sandoval with a deadly weapon,
“to wit, a knife.” Previously, in count 2, the information alleged only that appellants had
assaulted Sandoval by means of force likely to produce great bodily injury. Appellants
did not demand an election, nor was a formal election made by the prosecutor as to the
act or acts underlying counts 2 and 4. No unanimity instruction was delivered to the jury.
       In his final argument to the jury, the prosecutor was very specific with respect to
the acts he urged fell within counts 2 and 4. He argued that the counts’ factual basis was
the continuous course of conduct that occurred after Navarro parked the Lexus; i.e.,
Navarro punched Sandoval on the right side of his head, knocking him to the ground,
Navarro hit Sandoval with the “object,” the knife, and Vasquez punched and kicked
Sandoval in tandem with Navarro in order to keep Sandoval on the ground and to
continue besting him in the melee. This part of the assault came to a close when one of
the assailants turned and stabbed Keener.



                                             19
       There is authority that might support a conclusion that the various independent
blows given Sandoval each constitute a separate instance of felonious assault. (See, e.g.,
People v. Harrison (1989) 48 Cal.3d 321, 334.) But where, as here, the allegations of the
offense both constitute one of two prongs of the former section 245, subdivision (a)(1),
and the prosecution is explicit that the counts address “acts . . . so closely connected as to
form part of one transaction,” we must conclude that the counts constituted allegations of
but one criminal offense. (Coyle, supra, 178 Cal.App.4th at pp. 217-218 ; see People v.
Williams (2013) 56 Cal.4th 630, 682 ( rehg. den. June 19, 2013); People v. Ervine (2009)
47 Cal.4th 745, 788; People v. Stankewitz (1990) 51 Cal.3d 72, 99.)
       In the decision in People v. Harrison, supra, 48 Cal.3d 321, the trial court
permitted convictions of three different closely related offenses of forcible digital
penetration of the female victim within the meaning of section 289. The Supreme Court
reasoned that each incident of penetration amounted to a new and separate crime as the
penetration “completed the crime.” (Harrison supra, at pp. 328-330.) However, that
decision does not apply in this instance. That court was not addressing the issue of
multiple convictions in a felonious assault offense, which are different than sex offenses.
Nor was Harrison decided in the context of the prosecutor having identified the basis the
People’s allegations as a continuous course of conduct so closely connected as to form
part of one transaction in the absence of an election and the delivery of an unanimity
instruction. (Id. at p. 333, fn. 10.)
       This court concludes that in this instance a consolidation is required and orders
count 4 consolidated into count 2. (Coyle, supra, 178 Cal.App.4th at pp. 217-218.)
       4. The failure to reduce the felonious assaults to misdemeanors.
       Appellants contend the trial court denied them fundamental fairness and abused its
discretion as it used an improper standard to deny the motions to reduce the felonious
assaults (counts 1, 2 and 4) to misdemeanors.
       The felonious assault charges are “ ‘wobblers’ ” and pursuant to section 17,
subdivision (b), may be punished alternately as felonies and misdemeanors.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).)


                                              20
The pertinent facts to this contention are stated in our initial statement of facts on pages
9-10, in “The sentencing proceedings.”
       Appellants argue that the trial court’s misunderstanding of the standard and scope
of its discretion is demonstrated by its comment that despite its own view of the events of
the assaults, “having found no grounds for granting a new trial,” it believed that it had
“to live with the jury’s findings.” Further, they urge that the trial court’s later comments
and findings in mitigation, and the following factors in mitigation provided to the trial
court, buttress their claim: (1) appellants’ conduct was less blameworthy than the so-
called victims, (2) appellants were drawn into the melee by Sandoval, (3) appellants’
misconduct was unlikely to reoccur, and (3) appellants were otherwise productive
members of society who displayed all the characteristics of good citizenship.
       We disagree.
          a. Waiver and claim of constitutionally ineffective assistance of trial counsel.
       At the outset, the issue is waived. (People v. Scott (1994) 9 Cal.4th 331.) There
was no objection to the trial court’s ruling on this ground, and it is settled that the failure
to object results in a waiver whenever an appellant raises claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing choices.
(Id. at p. 353.) Vasquez asserts an exception as the trial court did not give an indicated
ruling, and there was no opportunity to object before, during, or after the ruling. This
claim is disingenuous as prior to sentencing, the parties were given an ample opportunity
to add to their remarks “with respect to either defendant.” The trial court’s later refusal
to hear belated argument proffered by the prosecutor does not demonstrate the trial court
would have similarly cut off any defense objections to the trial court’s ruling.
       Nevertheless, to forestall a claim of ineffective assistance of trial counsel, we
address the claim on the merits. (People v. Scaffidi (1992) 11 Cal.App.4th 145, 151.)
          b. The merits.
       People v. Carmony (2004) 33 Cal.4th 367, 374-375, sets out the general rule of
review for addressing claims of an abuse of discretion in determining sentencing choices.
In reviewing for abuse of discretion, we are guided by two fundamental precepts. First,


                                              21
“ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.’ ” (Alvarez, supra, 14 Cal.4th at pp. 977-978, quoting People v. Superior Court
(Du) (1992) 5 Cal.App.4th 822, 831.) Second, a “ ‘decision will not be reversed
merely because reasonable people might disagree. “An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial judge.”
[Citation]’ ” (Alvarez, supra, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d
568, 573.) Taken together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.”
          Also, because “all discretionary authority is contextual” (Alvarez, supra,
14 Cal.4th at p. 978), we cannot determine whether a trial court has acted irrationally or
arbitrarily in refusing to reduce the assaults to misdemeanors without considering the
legal principles and policies that should have guided the court’s actions. Valid reasons
for exercising discretion specifically in determining whether to reduce a wobbler to a
misdemeanor include “ ‘the nature and circumstances of the offense, the defendant’s
appreciation of and attitude toward the offense, or his traits of character as evidenced
by his behavior and demeanor at the trial’ ” (Alvarez, supra, at p. 978), and “the general
objectives of sentencing such as those set forth in the California Rules of Court . . . .”
(Ibid.)
          California Rules of Court, rule 4.410 provides that the “(a) General objectives
of sentencing include: [¶] (1) Protecting society; [¶] (2) Punishing the defendant; [¶]
(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him
or her from future offenses; [¶] (4) Deterring others from criminal conduct by
demonstrating its consequences; [¶] (5) Preventing the defendant from committing
new crimes by isolating him or her for the period of incarceration; [¶] (6) Securing
restitution for the victims of crime; and [¶] (7) Achieving uniformity in sentencing.”


                                               22
Subdivision (b) provides as follows: “Because in some instances these objectives may
suggest inconsistent dispositions, the sentencing judge must consider which objectives
are of primary importance in the particular case. The sentencing judge should be guided
by statutory statements of policy, the criteria in these rules, and the facts and
circumstances of the case.”
       The trial court did not make a formal statement of reasons for refusing to reduce
the felonious assaults to misdemeanor. Nor is this court aware of any requirement for a
formal statement of reasons upon making its decision. (See Cal. Rules of Court, rule
4.406(b) [rule does not include a reduction to a misdemeanor as one of the sentencing
choices that requires a statement of reasons].) Nevertheless, the trial court informed the
parties that it properly should not be sentencing appellants based on its personal view of
the weight and credibility of the evidence, and instead would respect the jury verdict by
making sentencing decisions in accordance with the seriousness of the offense as found
by the jury.
       It was not an abuse of discretion for the trial court to view the trial evidence in
accordance with the jury verdicts. The trial court had read the sentencing memorandum
and the other sentencing motions submitted by the parties, which discussed the trial
evidence, as well as presented to the trial court the individual characteristics of
appellants. The trial court was explicit in stating that it had researched the standard for
decision with respect to section 17, subdivision (b). There is nothing in the trial court’s
comments on the motion that lead us to believe that the trial court abrogated its
responsibility to make a reasoned decision based on the relevant criteria as set out in
Alvarez and California Rules of Court, rule 4.410. The jury apparently believed that
appellants had escalated the level of the assaults by introducing the use of a knife or
knives, which further led to Keener’s use of the crowbar. The trial court employed that
factor in later denying probation. Thus, it is apparent that the trial court properly used the
seriousness of the knife assaults as the reason for choosing the state prison term,
notwithstanding the mitigating circumstances of appellants’ good character and



                                              23
citizenship. There was no abuse of discretion, nor a denial of fundamental fairness, to
refuse to reduce the offenses to misdemeanors.
        5. Denial of probation.
        Appellants contend the trial court abused its discretion when it denied their
requests for grants of formal probation. As we set out infra, the trial court denied the
motion after finding the case was an “unusual” one permitting a grant of probation.
(§ 1203, subd. (e)(2).) The trial court commented that it was resting its decision not
so much on “the facts of the case, but [on] the nature of the charges and the findings
by the jury . . . .”
           a. Waiver and claim of constitutionally ineffective assistance of trial counsel.
        Again, at the outset, the People argue waiver, and we agree. (People v. Scott,
supra, 9 Cal.4th at p. 353 [forfeiture rule applies to “claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing choices” including a
failure “to state any reasons or give a sufficient number of valid reasons” for a sentencing
choice].) The record reflects the trial court’s willingness to consider any objections
prior to the formal imposition of sentence, notwithstanding that it was terse with the
prosecutor when he complained of wanting to comment further on bail on appeal.
(People v. Gonzalez (2003) 31 Cal.4th 745, 752.) To forestall any claim of
constitutionally ineffective assistance of trial counsel, we address the contention on the
merits. (People v. Scaffidi, supra, 11 Cal.App.4th at p. 151.)
           b. The merits.
        The trial court concluded the case was “unusual” within the meaning of section
1203, subdivision (e)(3), notwithstanding appellants’ use of a knife or knives.
Nevertheless, it found probation inappropriate “given the nature of the charges and the
jury’s verdict.”
        Section 1203, subdivision (e)(2), provides, as follows: “(e) Except in unusual
cases where the interests of justice would best be served if the person is granted
probation, probation shall not be granted to any of the following persons: [¶] . . . [¶]



                                              24
(2) Any person who used, or attempted to use, a deadly weapon upon a human being in
connection with the perpetration of the crime of which he or she has been convicted.”3
       “In the granting of probation, the Legislature has declared the primary
considerations to be: ‘the nature of the offense; the interests of justice, including
punishment, reintegration of the offender into the community, and enforcement of
conditions of probation; the loss to the victim; and the needs of the defendant.’
(Pen. Code, § 1202.7.)” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)
“A trial court has broad discretion in determining whether or not to grant probation.
In reviewing that determination it is not our function to substitute our judgment for that
of the trial court. Our function is to determine whether the trial court’s order . . . is




3
         Cal. Rules of Court, rule 4.414 provides, as follows: “Criteria affecting the
decision to grant or deny probation include facts relating to the crime and facts relating to
the defendant. [¶] (a) . . . [¶] Facts relating to the crime include: [¶] (1) The nature,
seriousness, and circumstances of the crime as compared to other instances of the same
crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The
vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional
injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant
was an active or a passive participant; [¶] (7) Whether the crime was committed because
of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶]
(8) Whether the manner in which the crime was carried out demonstrated criminal
sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the
defendant took advantage of a position of trust or confidence to commit the crime. [¶]
(b) . . . [¶] Facts relating to the defendant include: [¶] (1) Prior record of criminal
conduct, whether as an adult or a juvenile, including the recency and frequency of prior
crimes; and whether the prior record indicates a pattern of regular or increasingly serious
criminal conduct; [¶] (2) Prior performance on probation or parole and present probation
or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶]
(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s
age, education, health, mental faculties, history of alcohol or other substance abuse,
family background and ties, employment and military service history, and other relevant
factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her
dependents; [¶] (6) The adverse collateral consequences on the defendant’s life resulting
from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶]
(8) The likelihood that if not imprisoned the defendant will be a danger to others.”

                                              25
arbitrary or capricious or exceeds the bounds of reason considering all the facts and
circumstances.” (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 825.)
       On appeal, the burden is on appellant to show the sentencing decision was
irrational or arbitrary. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)
       Navarro argues that no evidence supported the potential factors in aggravation, the
trial court “blindly deferred to the verdicts themselves,” and the trial court improperly
cited as reasons in aggravation the elements of felonious assault in order to deny
probation. Vasquez asserts that denial of probation was arbitrary and irrational because
the totality of the record, the trial court’s remarks and all the relevant factors demonstrate
the only reasonable decision was to grant probation.
       The trial court read the memoranda appellant proffered in mitigation which
contained the factors appellants now claim require grants of probation. We presume
the court properly evaluated the assertions of fact in the memoranda in conformity with
California Rules of Court, rule 4.414 since there is no evidence to the contrary.
(Cal. Rules of Court, rule 4.409.) The trial court at sentencing was entitled to reject or
deem insignificant circumstances asserted in accordance with appellants’ own view of
how the melee occurred. (Cf. People v. White (1981) 117 Cal.App.3d 270, 280.)
After reviewing the applicable law, the trial court concluded that it was not its function to
ignore the jury’s decision by sentencing appellants as if they had engaged in no
wrongdoing whatsoever. Nevertheless, the trial court afforded appellants considerable
leniency considering the seriousness of their misconduct as it apparently viewed
Sandoval and Keener as the provocateurs. The trial court did not abuse its discretion by
relying on the dangerousness of appellants’ conduct and their resorts to the use of a knife.
Here, the refusal to grant probation was well within the limitations set by the Legislature,
and appellant has not shown the court acted arbitrarily, capriciously or beyond the bounds
of reason in denying probation.




                                              26
       Also, reliance on an aggravating factor of the use of a knife or knives does not
contravene the decision in People v. Parrott (1986) 179 Cal.App.3d 1119, 1125.
The Parrott court reasoned that “if an element of the crime could be used by the court to
deny probation, the court would in effect be finding that probation ineligibility exists as
the result of the commission of a crime even if such designation was not made by the
Legislature.” (Ibid.) The Parrott case is distinguishable. The use of the knife is an
element of one prong of how felonious assault may be committed. However, felonious
assault can also be committed by the more minimal conduct of threatening another with
the application of means of force likely to produce great bodily injury. It is not the
battery element of the offense that is the gravamen of this crime. Here, the use of the
knife or knives, resulting in injury, far exceeds the essential elements of the offense and
demonstrates considerable aggravation. Any case in which a defendant has actually
applied force to his victim is significantly more serious that one where there is a mere
threat of the application of force. The trial court did not abuse its discretion when it
relied on the use of the knife or knives as aggravating.
       6. Penal Code section 654.
       Navarro contends that the trial court imposed the two, concurrent terms of
imprisonment of two years each in contravention to the provisions of section 654.
We disagree.
       In count 1, the jury found only Vasquez committed an assault with a deadly
weapon, a knife, on Keener. In count 2, it determined appellants were guilty of
assaulting Sandoval by means likely to produce great bodily injury. In count 4, the jury
found Navarro had assaulted Sandoval with a deadly weapon, a knife, and that Vasquez
was guilty of a simple assault on Sandoval. We have ordered consolidation of counts 2
and 4. Consequently, we examine whether there is a section 654 problem where, in
count 1, Vasquez assaulted Keener with a deadly weapon, and in count 2, he assaulted
Sandoval by means likely to produce great bodily injury. As to Navarro, he is convicted
now only in the newly consolidated count 2 of assault with a deadly weapon, a knife, on
Sandoval.


                                             27
       Penal Code section 654, subdivision (a) provides in pertinent part: “An act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.”
       In People v. Nelson (1989) 211 Cal.App.3d 634, 638, the court set out the
following principles: “The proscription against double punishment contained in
Penal Code section 654 is applicable ‘. . . where there was a course of conduct which
violated more than one statute but nevertheless constituted an indivisible transaction.
[Citation.] Whether a course of conduct is indivisible depends upon the intent and
objective of the actor. [Citation.] If all the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than one.
[Citation.]’ [Citation.] [¶] ‘[W]hether the acts of which a defendant has been convicted
constituted an indivisible course of conduct is primarily a factual determination, made by
the trial court, on the basis of its findings concerning the defendant’s intent and objective
in committing the acts.’ [Citation.]”
       Appellants’ convictions do not violate the proscription in section 654. Multiple
punishment does not apply to crimes of violence against persons. (People v. Kurtenbach
(2012) 204 Cal.App.4th 1264, 1290-1291, citing People v. Miller (1977) 18 Cal.3d 873,
886 [§ 654 does not preclude multiple punishment when the defendant was “convicted of
a second crime of violence against a second victim”].) In this instance, both appellants
can be punished in count 2 as they each committed a separate act of violence on victim
Sandoval. Vasquez additionally can be separately punished by the imposition of the
concurrent term of imprisonment of two years as he initially assaulted Sandoval
with force likely to produce great bodily injury and then assaulted Keener. The assaults
involved the application of force to separate victims. (People v. Miller, supra, at p. 886.)




                                              28
                                      DISPOSITION
       The judgments are affirmed, except insofar as we correct the judgment to
consolidate count 4 into count 2.
       Navarro’s judgment is modified to consolidate count 4 into count 2, and count 2
will be a conviction of the greater offense of a violation of section 245, subdivision
(a)(1), assault with a deadly weapon, to wit, a knife. His term of imprisonment for
count 2 of two years remains the same, and the term of two years in state prison imposed
concurrently for count 4 is vacated. Navarro’s conviction in count 3, the hit and run, is
not affected by our order.
       Vasquez’s judgment is modified by consolidating his conviction of simple assault
in count 4 into count 2. His consolidated conviction in count 2 is an assault by means of
force likely to produce great bodily injury, and its term of imprisonment remains the two-
year term originally imposed by the trial court. The county jail sentence imposed in the
previous count 4 is vacated. Vasquez’s conviction in count 1, assault with a deadly
weapon, is not affected by our modifications to the judgments. The lower terms of two
years in state prison imposed concurrently for counts 1 and 2 remain the same.
       The trial court shall cause its clerk to prepare and send to the California
Department of Corrections amended abstracts of judgment that state judgments, as
modified.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KLEIN, P. J.


We concur:


              CROSKEY, J.                                               KITCHING, J.




                                             29
