P. v. Porter
By information, defendant Derrick Dontay Porter was charged with assault with a deadly weapon to wit . . . trash can[1] (Pen. Code, 245, subd. (a)(1)), and with criminal threats ( 422).[2] He was jointly tried by jury with codefendant Marcus Malone, who was charged with a separate count of assault with a deadly weapon (a steel pipe) and with the enhancement allegation of inflicting great bodily injury on Flores. At the close of the prosecutions evidence, the trial court granted defendants motion for judgment of acquittal under section 1118.1 on the charges against him in the information, but permitted the prosecution to amend to allege two other counts shown by the evidence: assault by means of force likely to produce great bodily injury by kicking and by using his fists ( 245, subd. (a)(1)), and attempted criminal threats ( 664/422). The jury convicted defendant of assault by means of force likely to produce great bodily injury, and acquitted him of attempted criminal threats. (It convicted Malone of assault with a deadly weapon and found the great bodily injury allegation against him true.) The trial court placed defendant on probation for three years and ordered that he serve 184 days in county jail (time served). On appeal, defendant contends that the trial court erred in permitting the prosecution to amend to charge assault by means of force likely to produce great bodily injury by kicking and using his fists. Court disagree and affirm the judgment.
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