Opinion
G052076
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID XAVIER GONZALEZ, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Elizabeth M. Kucher, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; DENYING PETITION FOR REHARING NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on April 27, 2017, be modified as follows:
The disposition paragraph on page 15 is amended to read:
"The true finding on the great bodily injury sentence enhancement is reversed, but the sentence actually imposed is unaffected because the court struck the great bodily injury finding for sentencing purposes. However, without the great bodily injury enhancement, the conviction on count 2 is no longer a violent felony under section 667.5, subdivision (c)(8), and the sentence imposed is no longer subject to the 15 percent limitation on presentence conduct credits under section 2933.1, subdivision (a).
"Therefore, on remand the court shall calculate and award defendant additional presentence conduct credits. The clerk of the superior court is directed to amend the abstract of judgment to (1) reflect the reversal on the great bodily injury sentence enhancement, (2) reflect the additional presentence custody credits awarded and (3) strike the reference to "violent felony." The clerk of the superior court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed."
The petition for rehearing is DENIED. This modification does not change the judgment.
THOMPSON, J. I CONCUR: ARONSON, ACTING P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13HF2448) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part, reversed in part. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Elizabeth M. Kucher, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged David Xavier Gonzalez with assault with a deadly weapon, namely a metal pipe (count 1); assault by means of force likely to produce great bodily injury (count 2); and active participation in a criminal street gang (count 3). Sentencing enhancements were alleged for committing the assault for the benefit of a criminal street gang, personally inflicting great bodily injury, having a prior strike conviction under the "Three Strikes" law and a prior serious felony conviction, and serving a prior prison term.
A jury found Gonzalez not guilty of assault with a deadly weapon as charged in count 1, but instead convicted him of the lesser included offense of simple assault. The jury also convicted Gonzalez of assault by means of force likely to produce great bodily injury as charged in count 2, active participation in a criminal street gang as charged in count 3, and found true all sentence enhancements. The court dismissed the strike prior, gang enhancement, and great bodily injury finding for sentencing purposes, and imposed a seven-year sentence.
Gonzalez challenges the admissibility and extent of the gang expert's testimony, the sufficiency of the evidence to support the great bodily injury enhancement, and the legality of his convictions for both simple assault and assault by means of force likely to produce great bodily injury. We reverse the great bodily injury enhancement, but affirm the judgment in all other respects.
FACTS
In the fall of 2012, Nickolas Vera moved into a second floor apartment in San Clemente with his mother and uncle. The neighborhood, which is sometimes referred to as the "Golden Ghetto," consists of several large apartment complexes. Varrio Chico, a San Clemente street gang, claimed the Golden Ghetto as part of its turf. Vera had seen gang graffiti in his apartment complex's laundry room, around his apartment, and "all over" the doors and walls in the alley behind the apartments.
Two days after Vera moved in, a young man with a shaved head wearing a white T-shirt and baggy pants asked Vera, "Where [he was] from?" and "What [did he] bang?" The young man said he was from Varrio Chico and walked away.
In the spring of 2013, Vera saw two young men smoking marijuana in public. Vera told them to "go do that somewhere else," and he threatened to call the police. They left without saying anything. When Vera saw them later in the day, they called him a rat.
In early July, Gonzalez approached Vera. He asked why Vera was "messing with [the] kids." Vera complained about the kids hanging around and doing drugs. Gonzalez told Vera he would talk to the kids and left.
On July 20, Vera came home from work around 1:00 p.m. He drank a couple of beers and sat on his porch with his neighbor. Around 4:30 p.m., he saw two young men, Ricardo P. and Gonzalez's younger brother, Steven, smoking marijuana out of an apple. Vera told them a child's birthday party was going on, and he asked them to go somewhere else.
There was a brief verbal exchange before Ricardo and Steven walked away. Fernando R. appeared out of nowhere and told Vera, "I don't care what you want. I ain't going to do what you say." Vera told Fernando to "get out of here," and walked back toward his apartment. Fernando punched Vera's head from behind while Ricardo and Steven loomed in the background. Then, Fernando walked into the street and yelled, "Varrio Chicos," and challenged Vera to a fight. Vera retrieved a buck knife from his pocket and showed it to Ricardo, Steven, and Fernando. They backed away and Vera went back to his apartment.
Flush with anger and resentment, Vera decided to grab his knife, his rather large uncle, and a four foot long, hollow metal pipe, and go back outside to confront the three juveniles. After Vera got downstairs, Fernando, Ricardo and Steven circled him. They yelled at Vera and told him to get out. Vera thought he would be assaulted, and he turned to hand the metal bar to his uncle. He told his uncle to, "hold on to it. Don't let them get it and don't use it unless you have to."
When Vera turned back around, Gonzalez was standing about two feet away from his face. Gonzalez asked Vera, "What's up?" and chest bumped him. There was a brief shoving match before Gonzalez challenged Vera to a fight. Vera told Gonzalez he was not interested in fighting, but Fernando, Ricardo, and Steven moved closer, and Gonzalez charged Vera.
Vera knocked Gonzalez to the ground and restrained him. Suddenly, Vera felt a blow to his head. He released Gonzalez and try to shield his face from a barrage of kicks, hits, and punches to his face, head, stomach, and chest. It was estimated Vera suffered 50 to 60 punches alone. Vera did not see who, or what, hit him. When someone yelled the police were on their way, Gonzalez, Fernando, Ricardo, and Steven fled the scene.
Vera called the police and went to the hospital. He received multiple bruises and abrasions, a long cut on the side of his abdomen, a cut on his forehead that required stitches, and his beaten and bruised left hand has permanent loss of mobility. Vera's uncle told him Fernando took the metal bar away from him and hit Vera in the head.
After Vera's discharge from the hospital, his grandparents drove him home. He found Fernando, Steven, Ricardo, and two unidentified adult males waiting for him. The group told Vera they ran things in the neighborhood, and they suggested he leave. When they asked Vera if he considered the problem solved, Vera said, "Yes."
Nevertheless, as Vera walked from his apartment to his grandparent's car, Fernando circled the car and banged on the windows. After Vera got into the car and his grandparents drove away, they contacted the police from a safe place. Police officers escorted Vera back to his apartment. But by that time, Vera's bedroom window had been shattered by two large rocks found lying on his bed. Vera moved out of the apartment a week later.
About three weeks after the assault, Orange County Sheriff's Deputy David Pultz searched Gonzalez's home. Pultz found several items consistent with gang membership in Gonzalez's residence, including clothing and photographs. Some of the photographs depicted Gonzalez's gang-related tattoos. Gonzalez has the letters, "OC," and the words, "San Clemente," tattooed on his chest. Other photographs show Gonzalez making gang hand signs.
Pultz interviewed Gonzalez at the sheriff's station. Pultz characterized Gonzalez's demeanor as relaxed, and he did not appear to have any injuries. Gonzalez said he knew Vera, but he denied taking part in any of the reported confrontations with him. A life-long resident of the Golden Ghetto, Gonzalez complained Vera was trying to change things, and Gonzalez felt personally disrespected by Vera on one occasion.
Pultz testified as the prosecution's gang expert. A 16-year veteran of the Orange County Sheriff's Department, Pultz received extensive training concurrent with his assignment to the gang unit. In the three years prior to trial, Pultz investigated about 100 gang-related crimes, interviewed approximately 50 Varrio Chico gang members, participated in the issuance of numerous search warrants and gang injunctions, and reviewed court documents and the reports of other officers.
Pultz was personally familiar with Varrio Chico. In the late 1960's, it was a San Clemente car club. Eventually, the car club split and formed two new criminal street gangs, Varrio Chico and Varrio Viejo. At the time of the crimes, there were over 100 documented members of Varrio Chico, and the gang claimed San Clemente and the Golden Ghetto as turf. Members of Varrio Chico wear dark colors and clothing. Among the gangs common symbols are the lettters "SC" or "SCVC," which refers to San Clemente and San Clemente Varrio Chico, among others.
Pultz explained some of Hispanic gang behavior and culture. He described the street gang concept of respect, which is synonymous with violence, and said violent crimes garner the most respect. Violence, fear, and intimidation allows a gang to control their claimed territories because behaving in this manner lessens the risk a resident will complain, or cooperate with police.
By the same token, acts considered disrespectful often lead to violent retaliation or payback. Gang members are expected to retaliate. They are also expected to "back up," or help each other commit crimes. Thus, if a gang member is bested in a fight, his fellow gang members are expected to step in and help out or suffer the consequences.
Pultz recounted two predicate offenses he personally investigated. In 2011, a Varrio Chico gang member was convicted of dissuading a witness. In 2012, another Varrio Chico gang member was convicted of attempted murder and assault with a deadly weapon.
Pultz was also personally familiar with Gonzalez. Pultz had seen Gonzalez's Varrio Chico tattoos and hand signs, and he had come into contact with Gonzalez in the company of Varrio Chico gang members in Varrio Chico's claimed territory.
In addition, Pultz reviewed police reports and records in preparation for trial. He found a 2007 STEP notice, which labeled Gonzalez a Varrio Chico "shot caller" for his high school, and a 2007 police report from a fight Gonzalez and two other documented Varrio Chico gang members got into with someone at school.
Street Terrorism Enforcement and Prevention Act, also known as the STEP Act. (Pen. Code, § 186.20 et seq; all further undesignated statutory references are to the Penal Code.)
In a 2009 police report, Gonzalez and two other Varrio Chico gang members assaulted two people and caused over $2,500 damage to a car. Gonzalez reportedly brandished a knife and a semi-automatic handgun, and he admitted being a member of Varrio Chico.
And, in 2010, Gonzalez was contacted by police while he was standing on the street with a baseball bat. Gonzalez told the deputy the bat was for his protection, but Gonzalez's text messages said he was "posted up" and "patrolling the streets."
Pultz testified to the contents of two field identification cards. In 2009, Gonzalez was contacted by a deputy sheriff in the presence of another known Varrio Chico gang member, and he admitted knowing Varrio Chico gang members commit crimes like vandalism and assault with a deadly weapon. In January 2012, Gonzalez was a passenger in a stopped car. The detaining officer made note of Gonzalez's San Clemente T-shirt and Varrio Chico tattoos.
In Pultz's opinion, Gonzalez, Steven, Fernando, and Ricardo were active members of Varrio Chico. Varrio Chico's primary activities are the commission of murders, assaults with deadly weapons, and car theft. Pultz said Gonzalez, Steven, Fernando and Ricardo committed the assault in association with the Varrio Chico gang, and for the gang's benefit. As Pultz explained, a group assault staged in public both increased the gang's respect and constituted payback for Vera's disrespect.
The crimes also promoted and furthered criminal conduct by Varrio Chico members because when Fernando yelled, "Varrio Chicos," he advertised the gang's commission of a violent crime in public, which would help the gang keep the neighborhood under control. Pultz relied on his personal knowledge and discussions with other officers, police reports, the STEP notice, and field interview cards to form his opinion.
Gonzalez did not assert an alibi defense. Instead, Gonzalez argued Vera made a conscious decision to fight him and not call the police. In addition, Gonzalez pointed out Vera had weapons, a knife and metal bar, and he argued he merely acted in self-defense and defense of his little brother.
DISCUSSION
1. Gang Testimony and the Confrontation Clause
Evidence Code section 801, subdivision (b), limits the basis of an expert's opinion to "matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Ibid.)
In People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley), the California Supreme Court decided the habits and culture of criminal street gangs is a proper subject for expert testimony. "California law permits a person with 'special knowledge, skill, experience, training, or education' in a particular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation]. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' [Citation.]" (Ibid.)
Consistent with Ohio v. Roberts (1980) 448 U.S. 56, 66, the Gardeley court also concluded expert testimony may be premised on inadmissible evidence "so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]" (Gardeley, supra, 14 Cal.4th 605, 618.) As the court observed, "[s]o long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (Ibid.) Thus, under Gardeley, the contents of police reports, field identification cards, and STEP notices were types of otherwise inadmissible hearsay deemed sufficiently reliable to admit.
However, our Supreme Court reconsidered the issue in People v. Sanchez (2016) 63 Cal.4th 665, 684 (Sanchez). Pointing to Crawford v. Washington (2004) 541 U.S. 36, 61-62 (Crawford), the Sanchez court stated: "Under Crawford, if [a hearsay] exception was not recognized at the time of the Sixth Amendment's adoption [citation], admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citations.]" (Sanchez, at p. 680.)
Consequently under Sanchez,"[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay," and the prosecution must show unavailability of a witness and the defendant either "had a prior opportunity for cross-examination, or forfeited that right by wrongdoing" to avoid the confrontation problem. (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)
As pertinent here, the Sanchez court decided police reports are testimonial because they "relate hearsay information gathered during an official investigation of a completed crime" and not "made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) Likewise, STEP notices are prepared primarily "to establish facts to be later used against [the defendant] or his companions at trial," so they are testimonial hearsay too. (Id. at p. 696.) Field identification cards may or may not be testimonial hearsay, depending on the purpose for recording the information. (Id. at p. 697.)
Without belaboring the point, Pultz testified to case-specific out-of-court statements when he relayed the contents of third-party police reports, field identification cards, and the STEP notice. When Pultz related "case-specific facts based upon out-of-court statements, and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay." (Sanchez, supra, 63 Cal.4th at p. 685.) Thus, under Crawford, the failure to afford Gonzalez the opportunity to cross-examine the hearsay declarant constitutes a violation of the confrontation clause, and renders inadmissible portions of Pultz's testimony. (Sanchez, at p. 685.)
Nevertheless, confrontation clause violations are subject to harmless error analysis. (Sanchez, supra, 63 Cal.4th at p. 698.) "Determining prejudice requires an examination of the elements of the gang enhancement [or substantive crime] and the gang expert's specific testimony." (Ibid.)
The substantive gang crime applies to "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." (§ 186.22, subd. (a).) The statute targets "gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang related." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.)
The gang enhancement requires proof beyond a reasonable doubt the defendant committed a felony "for the benefit of, at the direction of, or in association with any criminal street gang," and he or she did so "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).)
Sanchez "does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Sanchez, supra, 63 Cal.4th at p. 685; People v. Meraz (2016) 6 Cal.App.5th 1162, 1174-1175.) Under the general heading of background information and knowledge, Pultz explained the origins of Varrio Chico, described its claimed territory, and testified the gang's primary activities include attempted murder and assault with a deadly weapon. He also explained the culture and behavior of Hispanic street gang members, which included gang notions of turf, respect, back up, and retaliation with a heavy reliance on violence to control their claimed territory. Vera also testified about the gang graffiti he had seen throughout his apartment complex. Thus, there was sufficient evidence to prove Varrio Chico is a criminal street gang.
As to gang membership, Pultz knew Gonzalez from prior personal contacts and in connection with his investigation into the instant crimes. In the prior contacts, Pultz had seen Gonzalez in gang attire, with other Varrio Chico gang members, and in Varrio Chico's claimed turf. During the investigation, Pultz saw Gonzalez's gang tattoos and some pictures of Gonzalez throwing gang hand signs. When Pultz interviewed Gonzalez, Gonzalez admitted nongang members have problems in gang neighborhoods.
Pultz also had information about Steven, Fernando, and Ricardo. Steven was Gonzalez's little brother, and Vera had scolded him and Ricardo about smoking marijuana in public. Vera testified Fernando yelled, "Varrio Chicos," after the first exchange. Considering the familial and gang relationships between the four, and Vera's negative prior contact with Steven and Ricardo, the jury had sufficient circumstantial evidence to conclude all four of Vera's attackers were Varrio Chico gang members, and the assault was committed to benefit and promote Varrio Chico's criminal activities in the Golden Ghetto. Thus, the prosecution proved Gonzalez, Steven, Fernando, and Ricardo acted as Varrio Chico gang members when they assaulted Vera in concert and with the specific intent to benefit and promote Varrio Chico, and the violation of Gonzalez's Sixth Amendment right to confront adverse witnesses was harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698.)
Gonzalez also argues the court improperly admitted the gang testimony in violation of Evidence Code section 352, because its probative value was substantially outweighed by the probability its admission would create a substantial danger of undue prejudice. We disagree. The gang evidence was directly relevant and in fact required to prove the charged gang crime and enhancements. And, to the extent Gonzalez argues the quantum and scope of the gang evidence should have been restricted under Evidence Code section 352, we are not persuaded.
"The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason. [Citation.] Evidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent [citation], and while admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
Nothing in the record before us suggests the trial court's decision to admit the gang evidence over Gonzalez's objection exceeded the bounds of reason. Gonzalez cites People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), and asserts the gang evidence here was irrelevant and unduly lengthy. His reliance is misplaced.
Overruled on other grounds in People v. Vang (2011) 52 Cal.4th 1038, 1045. --------
In Killebrew, the prosecution had to rely on conspiracy to connect the defendant to the crime, and the expert gave extensive gang testimony (over 100 pages of transcript) that included references to the defendant's subjective knowledge and intent. (Killebrew, supra, 103 Cal.App.4th at pp. 648-649.) Here, the prosecution directly connected Gonzalez to the crime. Pultz did not testify to Gonzalez subjective knowledge and intent, but to the characteristics and culture of criminal street gangs. Furthermore, his testimony was concise and not lengthy. For all of these reasons we conclude the gang evidence admitted in this case did not violate Evidence Code section 352 or any other state evidentiary rules, or any of Gonzalez's constitutional rights. 2. Great Bodily Injury Enhancement
Gonzalez challenges the sufficiency of the evidence to prove the great bodily injury enhancement. Here we review the entire record in the light most favorable to the judgment to determine "'whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
"'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citations.]'" (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) "'A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."' [Citation.]" (People v. Raley (1992) 2 Cal.4th 870, 891.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. (Ibid.)
Section 12022.7 states in part: "(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
The statute "calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result." (People v. Modiri (2006) 39 Cal.4th 481, 493.) The defendant's acts must "contribute substantially to the victim's injured state." (Id. at p. 494.) Consequently, "the defendant's role in both the physical attack and the infliction of great bodily injury cannot be minor, trivial, or insubstantial." (Ibid.)
Vera's injuries were inflicted during the group assault, which started while Vera had Gonzalez pinned to the ground. After Vera let go of Gonzalez, Vera never saw Gonzalez hit, kick or strike him, and Vera did not know if Gonzalez had participated in the group assault. Moreover, the prosecution did not call any other percipient witnesses. Thus, there is no evidence to establish that any of Vera's injuries were a direct result of anything Gonzalez did to him during the group assault.
The Attorney General argues circumstantial evidence supports the jury's true finding on the great bodily injury enhancement, but the fact Gonzalez could have inflicted blows with the other attackers, even when coupled with gang notions of respect, retaliation, and backup, is insufficient to prove he personally inflicted great bodily injury. There is simply no evidence Gonzalez directly administered a blow or other force to Vera and that Vera suffered great bodily injury as a result. Therefore, the jury's true finding on the great bodily injury enhancement must be reversed. 3. Multiple Convictions
Gonzalez also contends the simple assault conviction on count 1 must be dismissed, citing section 954 and the lesser included offense rules. Gonzalez believes counts 1 and 2 were based on the same conduct. Not so.
Count 1 charged assault with a deadly weapon, in this case the metal pipe. Count 2 charged assault by force likely to produce great bodily injury. The prosecution relied two theories to ascribe criminal liability to Gonzalez. Either Gonzalez personally committed both crimes, or he aided and abetted a fellow gang member in the commission of a battery, and the use of a deadly weapon or force likely to cause great bodily injury was a natural and probable consequence of the battery.
Further, the prosecutor relied on the theory Gonzalez engaged in a course of conduct, and the court declined to give a unanimity instruction. "'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.]'" (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227, citing § 954.) "The test is the identity of the offenses as distinguished from the identity of the transactions from which they arise. A defendant may be convicted of two separate offenses arising out of the same transaction when each offense is stated in a separate count . . . ." (People v. Venable (1938) 25 Cal.App.2d 73, 74.)
Applying these principles leads us to conclude the two assault convictions are appropriate in this case. Simple assault is a lesser included offense of both charged assault offenses. (People v. McDaniel (20080 159 Cal.App.4th 736, 747-748.) And when the jury acquitted Gonzalez of assault with a deadly weapon as charged in count 1, the lesser included offense also related to the use of the metal pipe. Thus, while counts 1 and 2 arise from the same incident, they were not based on the same conduct.
DISPOSITION
The true finding on the great bodily injury sentence enhancement is reversed, but the sentence actually imposed is unaffected because the court struck the great bodily injury finding for sentencing purposes. The clerk of the superior court is directed to amend the abstract of judgment accordingly and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.