P. v. Guarino
Filed 9/11/06 P. v. Guarino CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(El Dorado)
----
| THE PEOPLE, Plaintiff and Respondent, v. RYAN WILLIAM GUARINO et al., Defendants and Appellants. |
C047604
(Super. Ct. No. S02CRF0358)
|
A jury convicted defendants Ryan William Guarino and Jose Manuel Carrero of battery with serious bodily injury (Pen. Code, § 243, subd. (d); count 1; undesignated section references are to the Penal Code) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2).[1] Both were sentenced to four years' probation, including 180 days of jail time.
Defendants contend their convictions and sentences on count 2 must be vacated on grounds of double jeopardy because the assault offense is necessarily included within the battery offense. Defendants additionally contend the trial court erred by denying a new trial motion, and by refusing to admit into evidence a written statement by the victim that was inconsistent with his trial testimony. We shall affirm.
FACTS
During a brawl at a party, the victim was severely beaten. The evidence showed three or four people, including defendants, took part in the assault. Defendants denied involvement and tried to pin the blame on uncharged third parties.
On the night of September 7, 2002, Derek Noack invited around 15 friends from high school, including Shahin Aryani, to a party at his El Dorado Hills home. Late that evening, a large group of uninvited guests, including defendants, showed up; Noack and Aryani did not know them.[2]
About an hour and half later, two girls began to argue on a deck outside the front door. There were around 25 or 30 people on the deck, including defendants; the crowd had divided into two groups, with the original guests on one side and the later arrivals on the other.
Different witnesses gave different accounts of what set things off, but it is undisputed that a melee erupted, during which some of the original guests were assaulted.
Noack came out on the deck and tried to get people to leave, with Aryani close behind him. But after being struck under his eye and in the nose, Noack went back inside, bleeding profusely.
According to Aryani, defendant Carrero had punched in a window by the front door, breaking it, then thrown a bottle which hit Noack across the nose. Aryani shoved Carrero. Seeing defendant Guarino attacking people, Aryani shoved him as well.
Carrero and some of his friends grabbed Aryani from behind; then Guarino grabbed him. The group, which numbered around four, dragged him to the ground and began kicking him, repeatedly pushing him back down as he tried to escape. Aryani saw both defendants kicking him while he was on the ground. He was kicked continuously â€
