Filed 12/22/05 P. v. Sanchez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| THE PEOPLE,
Plaintiff and Respondent,
v.
MOISES SANCHEZ,
Defendant and Appellant.
|
E037528
(Super.Ct.No. SWF7909)
O P I N I O N
|
APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Affirmed in part; reversed in part.
James R. Bostwick, Jr., 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, James D. Dutton, Supervising Deputy Attorney General, and Randall D. Einhorn, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Moises Sanchez of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664; count 1),[1] battery on a peace officer (§ 243, subd. (c)(2); count 2), corporal injury on a spouse (§ 273.5, subd. (a); count 3), and resisting an officer (§ 148, subd. (a)(1); count 4). As to counts 1 and 3, the jury found true the allegations that defendant personally used a deadly weapon. (§§ 12022, subd. (b)(1) & 1192.7, subd. (c)(23).) The court sentenced defendant to a total term of four years eight months in state prison, consisting of three years for count 1, plus an additional one year for the use of a deadly weapon enhancement, plus a consecutive term of eight months for count 2. The court stayed the term for count 3, and imposed a term of 295 days in county jail for count 4 with 295 days' credit.
On appeal, defendant contends that his conviction in count 4 must be reversed because the offense of resisting an officer is a lesser included offense of battery on a peace officer. The People correctly concede.
FACTUAL BACKGROUND
Defendant attacked his wife in their home after someone told him she was having an affair with her boss. The wife broke free from the struggle with defendant and ran to her sister's house to call the police. When the police arrived, defendant had blood on his face and hands. Defendant's fists were clenched, and he failed to respond to the officers' commands to show them his hands. When one of the officers attempted to handcuff him, defendant repeatedly punched him. Eventually, both officers were able to apprehend him.
ANALYSIS
Defendant argues, and the People agree, that his conviction in count 4 must be reversed because resisting an officer is a lesser included offense of battery on a peace officer. Defendant is correct.
Resisting an officer is a lesser included offense of battery on a peace officer. (People v. Perkins (1970) 9 Cal.App.3d 1048, 1051; People v. Jones (1981) 119 Cal.App.3d 749, 755.) A defendant cannot be convicted of both an offense and a lesser included offense when both are based on the same act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) Thus, the conviction for the lesser offense in count 4 must be reversed. (People v. DeAngelis (1979) 97 Cal.App.3d 837, 841.)
DISPOSITION
The conviction for resisting an officer in count 4 is reversed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ Ramirez
P. J.
We concur:
/s/ Richli
J.
/s/ King
J.
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