Opinion Bank # O-199
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE, C017387
Plaintiff and Respondent, (Sacramento Super. Ct. No. CR114717)
v.
MICHAEL FOTH et al.,
Defendants and Appellants.
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Appellants Michael Foth and Darron Garcia were convicted by jury of assault (Pen. Code, § 240; all otherwise undesignated section references are to this Code), assault with a firearm on a peace officer (§ 245, subd. (d)(1)), transportation of methamphetamine (Health & Saf. Code, § 11379), and possession of a firearm by a felon (§ 12021, subd. (a)).]. [Footnote 1] Garcia alone was seat of the car rented and driven by Garcia, within sight and reach of Foth, and he perceived its presence well before the assault on Officer Scott began; thus the jury could reasonably have found that defendants, shared possession of the gun (actual as to Garcia, constructive as to Foth) was “antecedent . . . from the primary offense.” (Ibid.) Moreover, the jury could also reasonably have found that defendants possessed the gun in order to protect themselves in the act of transporting methamphetamine, not in order to assault a’pursuing police officer; thus their possession of the gun was also “separate from the primary offense.” (Ibid.)
The trial court did not err by imposing sentence on both offenses.
III
Defendant Foth contends his conviction for assault as a lesser included offense on count I (attempted murder) must be reversed because assault is necessarily included within the greater offense of assault with a firearm on a peace officer (count 2), of which he was also convicted. [Footnote 2] (See People v. Toro (1989) 47 Cal.3d 966, 972; People v. Irvin (1991) 230 Cal.App.3d 180, 184.) The Attorney General concedes the point. We accept the Attorney General’s concession. [Footnote 3]
IV
Defendant Foth contends that the enhancement imposed under section 12022.5, subdivision (a) (personal use of a firearm in the commission of a felony) on count 1 must be stricken because he was convicted only of misdemeanor assault on that count. As noted, however, the record is ambiguous about whether such an enhancement was actually imposed. [Footnote 4] In any event, since Foth’s opening brief was filed we have received an amended abstract of judgment, filed in the trial court on September 28, 1994, which shows neither a sentence nor an enhancement on count 1. Thus, this contention is moot.
Defendant Foth and the Attorney General point out other clerical errors relating to enhancements in the original abstract of judgment. The amended abstract of judgment reveals that these errors have been corrected, mooting both parties’ contentions.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE, C017387
Plaintiff and Respondent, (Sacramento Super. Ct.
No. CR114717)
v.
ORDER MODIFYING OPINION
MICHAEL FOTH et al., AND DENYING REHEARING
[CHANGE IN JUDGMENT]
Defendants and Appellants.
_________________________________________/
THE COURT:
It is ordered that the opinion filed herein on January 5, 1995, be modified in the following respects:
On page 13, on line two, insert the following sentence before “The Attorney General . . . “:
Defendant Garcia joins in this contention.
On page 31, amend the first sentence of the DISPOSITION so that it reads:
The judgments are reversed as to defendants, convictions on count 1 and Garcia’s conviction on count 4.
This modification changes the judgment.
The petition for rehearing is denied.
BLEASE , Acting P.J.
SIMS, J.
MORRISON, J
FOOTNOTES:
Footnote 1: The assault convictions were lesser included offenses to the charge of attempted murder (§§ 664/187), on which defendants were acquitted.
Footnote 2: Assault is defined as “an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.” (§ 240.) The crime of assault with a firearm on a peace officer (§ 245, subd. (d)(1)) includes no definition of term “assault” different from that of section 240. Thus it follows that simple assault is necessarily included within assault on a peace officer. (See People v. Jones (1981) 119 Cal.App.3d 749, 754; People v. Buice (1964) 230 Cal.App.2d 3 345-346.)
Footnote 3: The record does not show that the trial court imposed sentence on defendant Garcia on count 1. As to defendant Foth, the record is ambiguous on this point.
Footnote 4: The reporter’s transcript reflects that the trial court stayed Foth’s sentence on count 1 pursuant to section 654, and the original abstract of judgment does not show a sentence imposed on him on that count; however, a court minute order shows a one-year sentence on count 1 to be served concurrently with the sentence on count 2.
