P. v. Beaty

Filed 8/8/06 P. v. Beaty CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William R. Bailey, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.

Scott M. Rand, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Ivy Fitzpatrick, Deputy Attorney General, for Plaintiff and Respondent.

Spencer Charles Beaty (defendant) appeals his conviction of a number of offenses arising from an altercation with his wife and several friends and neighbors. We find his contentions without merit, with one exception: We reverse his conviction for attempted assault with a deadly weapon or by means of force likely to cause great bodily injury, because no such crime exists in California.PROCEDURAL HISTORY

Defendant was charged with four counts of assault with a deadly weapon or by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1); counts 1-4),^[1] one count of infliction of corporal injury on a spouse (§ 273.5, subd. (a); count 5) and one count of hit and run with injury (Veh. Code, § 20001, subd. (a); count 6). The information alleged personal infliction of great bodily injury as to count 1, and alleged that the offense was a serious felony. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).)

At the close of the prosecution's case-in-chief, the court granted defendant's motion for a directed verdict of acquittal on count 4 (assault), pursuant to section 1118.1. However, the court found that there was substantial evidence to support a guilty verdict as to a purported lesser included offense of attempted assault with a deadly weapon, and reduced count 4 to the lesser offense. The jury convicted defendant on that count. It acquitted him on count 3, but convicted him of the remaining offenses. The jury was not able to reach a verdict on the great bodily injury allegation, and the court declared a mistrial as to it.

After denying a defense motion to reduce the offenses to misdemeanors, the court sentenced defendant to a total of five years in state prison. Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

Defendant, his wife Victoria and several couples and families with whom they were friends or acquaintances spent a day boating and â€