Filed 11/28/05 P. v. Maui 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sacramento)

----

THE PEOPLE, Plaintiff and Respondent, v. PUNI LAOFIE MAUI, Defendant and Appellant.

C048168 (Super. Ct. No. 04F02765)

A jury convicted defendant Puni Laofie Maui of mayhem (Pen. Code, § 203‑‑count one),^[1] battery with serious bodily injury (§ 243, subd. (d)‑‑count two), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)‑‑count three), which included a finding he had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced him to an aggregate term of five years in state prison.

On appeal, defendant contends his convictions for battery with serious bodily injury and assault by means of force likely to produce great bodily injury must be reversed because they are lesser included offenses of mayhem. We agree only that defendant's conviction for battery with serious bodily injury must be reversed and shall otherwise affirm the judgment.

FACTUAL BACKGROUND

On February 27, 2004, Mickey Ramirez was inside a convenience store on Stockton Boulevard paying for gasoline for his vehicle. Ramirez was approached by defendant, who identified himself as a Crip gang member and told Ramirez to remove the red shirt he was wearing. When Ramirez refused, defendant â€