Fear Not Law Articles: P. v. Lovejoy

P. v. Lovejoy

Filed 11/6/07 P. v. Lovejoy CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

DAX LEE LOVEJOY,

Defendant and Appellant.

D050234

(Super. Ct. No. SCD200333)

APPEAL from a judgment of the Superior Court of San Diego County, John Thompson, Judge. Affirmed as modified with directions.

On July 17, 2006, Dax Lee Lovejoy stabbed Logan Jewell in the back with a knife several times. The victim had four stab wounds in the back, one in the neck, and a laceration above the eye, and was hospitalized for five days. A jury found Lovejoy guilty of assault with a deadly weapon and by means likely to produce great bodily injury (GBI) (Pen. Code, 245, subd. (a)(1); all further statutory references are to the Penal Code), with personal use of a deadly or dangerous weapon (a knife) ( 12022, subd. (b)(1)) and personal infliction of GBI ( 12022.7, subd. (a)). Lovejoy admitted serving a prior prison term ( 667.5, subd. (b), 668). Lovejoy appeals, contending the one-year enhancement for knife use must be stricken because knife use was an element of the substantive offense. The People properly concede the point. (People v. McGee (1993) 15 Cal.App.4th 107; People v. Summersville (1995) 34 Cal.App.4th 1062, 1065, 1069-1070.)

DISPOSITION

The judgment is modified by striking the one-year Penal Code section 12022, subdivision (b)(1) knife use enhancement. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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Description	On July 17, 2006, Dax Lee Lovejoy stabbed Logan Jewell in the back with a knife several times. The victim had four stab wounds in the back, one in the neck, and a laceration above the eye, and was hospitalized for five days. A jury found Lovejoy guilty of assault with a deadly weapon and by means likely to produce great bodily injury (GBI) (Pen. Code, 245, subd. (a)(1); all further statutory references are to the Penal Code), with personal use of a deadly or dangerous weapon (a knife) ( 12022, subd. (b)(1)) and personal infliction of GBI ( 12022.7, subd. (a)). Lovejoy admitted serving a prior prison term ( 667.5, subd. (b), 668). Lovejoy appeals, contending the one-year enhancement for knife use must be stricken because knife use was an element of the substantive offense. The People properly concede the point. (People v. McGee (1993) 15 Cal.App.4th 107; People v. Summersville (1995) 34 Cal.App.4th 1062, 1065, 1069-1070.) The judgment is modified by striking the one year Penal Code section 12022, subdivision (b)(1) knife use enhancement. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
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