P. v. Raygoza
Defendant Clemente Raygoza was charged by second amended information with attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1)[1], assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), and dissuading a witness from testifying (§ 136.1, subd. (a)(1); count 4). It was alleged that defendant used a dangerous and deadly weapon (§ 12022, subd. (b)(1); count 2) and caused great bodily injury (§ 12022.7, subd. (a); counts 1, 2 & 3). The jury found defendant guilty, and all special allegations were found to be true. He was sentenced to an aggregate term of 11 years, consisting of seven years on count 1, and four years for the enhancements on count 1. His sentences on the remaining counts and enhancements were stayed under section 654.
On appeal, defendant contends the trial court erred by failing to instruct on the lesser included offense of voluntary manslaughter under the theories of heat of passion and imperfect defense of others. Defendant also contends, and respondent concedes, that he may not be convicted of both counts of assault, because the counts arose from the same conduct and were merely alternative theories of the same offense. He therefore maintains that only one assault conviction may stand. Lastly, defendant contends there was insufficient evidence he actually dissuaded a witness from testifying, as alleged in the information, as the witness testified at the preliminary hearing and trial. Alternatively, he contends the evidence shows only that he attempted to influence her testimony, rather than discourage her from testifying. While we conclude defendant was entitled to an instruction on voluntary manslaughter under an imperfect defense of others theory, we find that the error in failing to give the instruction was harmless. We also find that only one of defendant’s assault convictions may stand. We are not, however, persuaded by defendant’s remaining contentions.
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