Filed 5/15/14 P. v. Aguilar CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                          B247118

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA085021)
         v.

RUDOLPH AGUILAR,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Janice Claire Croft, Judge. Affirmed in part, reversed in part.
         Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
       Rudolph Aguilar was tried on two counts of assault, based on alternate theories
under Penal Code section 245, former subdivision (a)(1).1 He was convicted on both
theories: assault with a deadly weapon and assault by means of force likely to produce
great bodily injury. On appeal, he argues the jury was not properly instructed on the
alternative theories and that the error was prejudicial.
       Appellant also argues, and respondent concedes, that the two convictions were
impermissible since both arose out of a single continuous course of conduct. Appellant
argues both convictions must be reversed. His alternative argument is based on the fact
that assault with a deadly weapon qualifies as a serious felony, but assault by means of
force likely to produce great bodily injury does not. He argues we must reverse his
conviction in count 1 for assault with a deadly weapon because the jury was not asked to
make a finding of the predicate fact that he used a deadly weapon. Respondent argues
that we should reverse only count 2, assault by means of force likely to produce great
bodily injury.
       We find no instructional error. We reverse the conviction of count 2, and
otherwise affirm.


                    FACTUAL AND PROCEDURAL SUMMARY
       On the evening of December 14, 2011, Jeffrey Lotz was homeless and preparing
to go to sleep beside train tracks near the intersection of North Huntington Drive and
Santa Anita Avenue in Arcadia. Earlier that evening he had been with appellant, who
also was homeless, behind bushes at a nearby carwash. Appellant came out from around
a bush and told Mr. Lotz that he had to move. Mr. Lotz asked what was wrong.


       1 Statutory references are to the Penal Code. “Effective January 1, 2012 former
subdivision (a)(1) of section 245 was divided into two separate and distinct subdivisions:
section 245, subdivision (a)(1), now prohibits assault with a deadly weapon or instrument
other than a firearm, and new subdivision (a)(4) prohibits assault by means of force likely
to produce great bodily injury. (Stats. 2011, ch. 183, § 1.)” (People v. Brown (2012) 210
Cal.App.4th 1, 5, fn. 1 (Brown).)


                                              2
Appellant said he was in his spot, and could not sleep there. Mr. Lotz said that he had
been given permission by appellant to sleep in that location. Appellant repeated that
Mr. Lotz had to move. Mr. Lotz began to gather his belongings, which were near a four
foot by six foot concrete electrical box with a metal cover. The two men used the box to
store items. Appellant was standing next to a two inch by one inch piece of wood, 39
inches long.
       Appellant picked up the piece of wood and “started slamming it” on the metal
electrical box “right next” to Mr. Lotz. Mr. Lotz asked appellant to stop, saying that he
was leaving. Appellant hit the box again, and said Mr. Lotz was not moving fast enough.
Mr. Lotz looked up, and was struck in the head by appellant, who was agitated and
yelling. Mr. Lotz was struck on the hairline, his eye was grazed, and he was cut just
below his right eye. The stick broke on the first blow.
       Mr. Lotz asked appellant what he was doing. Appellant repeated his demand that
Mr. Lotz get out, saying that he was not moving fast enough. Mr. Lotz looked up and put
his hand up. Appellant swung again, hitting Mr. Lotz’s hand, deflecting off, and hitting
Mr. Lotz on the left cheek. Mr. Lotz told appellant his hand was broken, to which
appellant replied, “‘Good.’” Mr. Lotz got up, walked out to the sidewalk and flagged
down police officers. He received seven stitches at his hairline and six just below his
right eye. Vision in his right eye remained blurry. His ring finger was broken and was
permanently bent.
       Arcadia police officers Jeffrey Stark and Brian Long were directed by Mr. Lotz to
the location of the assault. He identified appellant as his assailant. Appellant, whom
Officer Stark knew from previous contacts, was at the scene. A substance that appeared
to be blood was on his clothing. He was detained by the officers. Officer Cameron Link
took over the investigation at the scene. A big piece of wood was found propped up on
the crossing arm at the railroad crossing. Officer Stark described it as a two-by-four with
a rugged texture. It appeared to have blood on the jagged edge. It was photographed and
taken into evidence. Mr. Lotz identified it as the piece of wood with which appellant had
struck him.

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       Appellant testified in his own defense. He admitted a dispute with Mr. Lotz about
sleeping space near the railroad tracks during which he broke the piece of wood by
hitting it against the electrical box. But he denied striking Mr. Lotz. He claimed that
Mr. Lotz moved around while on the ground, leaned over, and cut himself with the stick.
He said the blood on his clothing was his own, from scratching himself during a yard
work job, and then reopening the wound every time he took a cigarette and lighter out of
his pockets.
       The jury convicted appellant on both counts 1 and 2. The trial court returned a
true finding of an allegation that appellant had a prior strike serious felony conviction,
pursuant to sections 1170.12, subdivisions (a)-(d) and 667, subdivision (a)(1). The court
also found appellant in violation of probation in case No. GA077961. The court denied
appellant’s motion to strike the prior conviction. He was sentenced to a term of 11 years
in state prison, consisting of the middle term of three years on count 1, doubled to six
years due to the strike prior (section 1170.12, subdivision (a)-(d)), plus a five-year
enhancement under section 667, subdivision (a)(1). Appellant filed a timely appeal.


                                       DISCUSSION
                                              I
       Appellant was convicted under both forms of assault defined in section 245,
former subdivision (a)(1): assault with a deadly weapon, and assault with force likely to
produce great bodily injury. Assault with a deadly weapon is a serious felony for
purposes of the Three Strikes law. (§ 1192.7, subd. (c)(31).) But assault likely to
produce great bodily injury is not a strike offense. (People v. Fox (2014) 224
Cal.App.4th 424, 434, fn. 8.)
       Two categories of deadly weapons are included under section 245. The first are
“objects that are ‘deadly weapons as a matter of law’ such as dirks and blackjacks
because ‘the ordinary use for which they are designed establishes their character as such.
[Citation.]” (People v. Brown, supra, 210 Cal.App.4th at p. 6.) The second includes



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“objects, [which] while not deadly per se, may be used, under certain circumstances, in a
manner likely to produce death or great bodily injury.’ [Citations.]” (Id. at pp. 6–7.)
       Appellant’s primary claim on appeal is that the trial court’s instruction with
CALJIC No. 9.02 combined the two forms of the offense, and thus eliminated elements
of each, violating his constitutional right to due process.
       As given CALJIC No. 9.02 read: “Defendant is accused in Counts 1 and 2 of
having violated section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] Every
person who commits an assault upon the person of another with a deadly weapon or by
means of force likely to produce great bodily injury is guilty of a violation of section 245,
subdivision (a)(1) of the Penal Code, a crime. [¶] A ‘deadly weapon’ is any object,
instrument, or weapon which is used in such a manner as to be capable of producing, and
likely to produce, death or great bodily injury. [¶] ‘Great bodily injury’ refers to
significant or substantial bodily injury or damage; it does not refer to trivial or
insignificant injury or moderate harm. [¶] In order to prove this crime, each of the
following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The
assault was committed with a deadly weapon or instrument, or by means of force likely
to produce great bodily injury.” (Italics added.)
       Appellant argues that each of the two theories of assault should have been given in
separate instructions. He contends the result of combining the two in a single instruction
was to allow the jury to find appellant used a deadly weapon as charged in count 1 by
relying only on evidence of force. Similarly, he asserts that as to count 2, use of force
likely to produce great bodily injury, the jury could have found appellant used a deadly
weapon without considering the requisite force.2


       2 Appellant also points out that trial courts are encouraged to use the CALCRIM
pattern instructions rather than the CALJIC instructions. While that is so, it is not error to
use the latter. (People v. Thomas (2007) 150 Cal.App.4th 461 (Thomas).) As in Thomas,
here there is no record of an objection by either party to the use of CALJIC instructions.
The Thomas court held the “Judicial council’s adoption of the CALCRIM instructions did
not render any of the CALJIC instructions invalid or ‘outdated,’ as appellant claims.
CALJIC instructions that were legally correct and adequate on December 31, 2005, did

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       “When considering a claim of instructional error, we view the challenged
instruction in the context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner. [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
       In light of the evidence presented here, we conclude there is no reasonable
likelihood the jury applied the instruction in the manner suggested by appellant. The
Supreme Court in People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar) explained that
often the distinction between the two types of assault is not significant. “Ultimately
(except in those cases involving an inherently dangerous weapon), 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.
As the Court of Appeal reasoned in [People v.] Davis [(1996)] 42 Cal.App.4th 806, ‘[A]ll
aggravated assaults are ultimately determined based on the force likely to be applied
against a person.’ (Id. at pp. 814–815.)” (Aguilar, at p. 1035.)
       The evidence was that appellant used a 39-inch-long piece of broken wood to hit
Mr. Lotz more than once on the head. That evidence established that the stick was a
deadly weapon as defined in former section 245, subdivision (a) and charged in count 1,
and that appellant used force likely to cause great bodily injury as charged in count 2.
The jury was adequately instructed on these elements. There is no reasonable probability
that the jury applied CALJIC No. 9.02 in an impermissible manner. In light of our
conclusion that there was no instructional error, appellant’s arguments regarding
prejudice are moot.


not become invalid statements of the law on January 1, 2006. Nor did their wording
become inadequate to inform the jury of the relevant legal principles or too confusing to
be understood by jurors. The Judicial Council’s adoption of the CALCRIM instructions
simply meant they are now endorsed and viewed as superior. No statute, rule of court, or
case mandates the use of CALCRIM instructions to the exclusion of other valid
instructions.” (Id. at pp. 465–466.)

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       Appellant cites the Bench Notes to CALCRIM No. 875 on assault in violation of
section 245 to argue the version of CALJIC No. 9.02 given here should have been
modified to follow the CALCRIM instruction. The note cited states a trial court should
use separate paragraphs for each of the two theories of assault.3 Appellant reiterates that
giving CALJIC No. 9.02 without modifying it to provide separate paragraphs for the two
theories of assault, as in CALCRIM No. 875, allowed the jury to find appellant used a
deadly weapon by relying on evidence of force alone, and to find him guilty of count 2
based on evidence that a deadly weapon was used without consideration of force.
       As we have concluded, the modification urged by appellant was not required.
CALJIC No. 9.02 correctly instructed the jury on the separate theories of assault, which
in this case were established by identical evidence.


                                             II
       Appellant argues, and respondent concedes, that he was improperly convicted of
two aggravated assault crimes based on a single course of conduct.
       Section 245, former subdivision (a)(1) defined “‘only one offense, to wit, “assault
upon the person of another with a deadly weapon or instrument [other than a firearm] or
by means of force likely to produce great bodily injury . . . .” The offense of assault by
means of force likely to produce great bodily injury is not an offense separate from
. . . the offense of assault with a deadly weapon.’ [Citation.]” (People v. McGee (1993)

       3  The bench note from the version of CALCRIM No. 875 in effect in 2012 when
the trial was conducted stated “[g]ive element 1A if it is alleged the assault was
committed with a deadly weapon other than a firearm . . . Give 1B if it is alleged that the
assault was committed with force likely to produce great bodily injury. (See Pen. Code,
§ 245(a).)” (CALCRIM No. 875 (2012 ed.), bench notes, pp. 670–671.) Element 1A
stated: “<Alternative 1A—force with weapon> [¶] [1. The defendant did an act with (a
deadly weapon other than [one of several enumerated firearms]) that by its nature would
directly and probably result in the application of force to a person;]”. (CALCRIM No.
8.75, p. 668.) Alternative 1B of CALCRIM No. 875, force without weapon, read: “[1A.
The defendant did an act that by its nature would directly and probably result in the
application of force to a person, and [¶] 1.B. The force used was likely to produce great
bodily injury;].” (Ibid.)

                                             7
15 Cal.App.4th 107, 114 (McGee).) McGee concluded the defendant convicted of
violating section 245, subdivision (a)(1) could also have an enhancement for use of a
deadly weapon under section 12022, subdivision (b). It emphasized that former
subdivision (a)(1) defined only one offense. “If prosecutors were permitted to divide
section 245, subdivision (a)(1) into two separate offenses regardless of the defendant’s
conduct, as did the prosecutor in this case, similarly situated defendants who assaulted
their victims with deadly weapons other than firearms and were charged with violating
section 245, subdivision (a)(1) could receive disparate punishment depending solely upon
the language used in the pleadings. The one accused of assault with a deadly weapon
would not be subject to the enhancement under section 12022, subdivision (b) while the
one accused of assault by means of force likely to cause great bodily injury would be
subject to the additional punishment. This is an absurd and unjust result which is
inconsistent with the legislative intent in enacting sections 245, subdivision (a)(1) and
12022, subdivision (b).” (Id. at p. 117.)
       Appellant’s convictions of violating section 245, former subdivision (a)(1), both
by use of a deadly weapon and by the use of force likely to cause great bodily injury,
violate the rule that “multiple charges and multiple convictions can be based on a single
criminal act, if the charges allege separate offenses. (People v. Ryan (2006) 138
Cal.App.4th 360, 368.)” (People v. Muhammad (2007) 157 Cal.App.4th 484, 490, italics
added (Muhammad).) Here the charges alleged a single offense, as explained in Aguilar,
supra, 16 Cal.4th at pp. 1036–1037 and McGee, supra, 15 Cal.App.4th at p. 117. The
Muhammad court concluded that three of the defendant’s four stalking convictions
(charged in separate counts) had to be vacated because he could be convicted of only a
single offense of stalking. (Muhammad, at p. 494.) For the same reason, one of
appellant’s convictions of violating section 245 must be reversed.
       The issue, then, is whether we must reverse count 1, the deadly weapon
conviction, or count 2, the use of force conviction. The first is a serious felony which
qualifies as a strike (§ 1192.7, subd. (c)(31)), while the second, assault by means likely to
produce great bodily injury, is not. (People v. Fox (2014) 224 Cal.App.4th 424, 434.)

                                              8
We may consider admissible evidence from the entire record to determine whether the
evidence established a separate basis to conclude the offense was a strike because the
assault was committed by personal infliction of great bodily injury on a person, which is
a strike under section 1192.7, subdivision (c)(8). (People v. Delgado (2008) 43 Cal.4th
1059, 1065.)
       Here, CALJIC No. 9.02 informed the jury that it could convict appellant if it found
he committed assault by means of force likely to produce great bodily injury. The jury
was instructed, “‘Great bodily injury’ refers to significant or substantial bodily injury or
damage; it does not refer to trivial or insignificant injury or moderate harm.” The
evidence established that Mr. Lotz suffered great bodily injuries as a result of the blows
inflicted by appellant. Thus in order to convict appellant on count 2, the jury had to find
that he used force likely to produce great bodily injury. This finding also supports the
finding that appellant used a deadly weapon, which was defined in the instruction as “any
object, instrument, or weapon which is used in such a manner as to be capable of
producing, and likely to produce, death or great bodily injury.”
       Where a defendant is improperly convicted of two offenses arising out of the same
act, and the evidence supports the verdict on the greater offense, that conviction is
controlling, and the conviction on the other offense must be reversed. (People v. Sanders
(2012) 55 Cal.4th 731, 736 [discussed in the context of a greater and a necessarily lesser
included offense].) The evidence here supports the verdict on count 1, assault with a
deadly weapon. We affirm that count and reverse the conviction on count 2.




                                              9
                                    DISPOSITION
      The conviction on count 2 and the sentence imposed on that count are vacated.
The conviction on count 1 and the sentence on that count are affirmed. The superior
court is directed to prepare an amended abstract of judgment and forward it to the
Department of Corrections and Rehabilitation.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EPSTEIN, P. J.
We concur:



      WILLHITE, J.



      EDMON, J.*




        *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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