People v. Carrera CA4/3

Filed 4/12/21 P. v. Carrera CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058437

v. (Super. Ct. No. 19NF1579)

JAMES EUGENE CARRERA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael
J. Strickroth, Judge. Affirmed in part, reversed in part, and remanded.
Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steven T. Oetting
and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
 James Eugene Carrera got into a physical altercation with two people. The
jury convicted him of assault with a deadly weapon and simple assault as to the first
victim, and misdemeanor battery and simple assault as to the second victim. The trial
court sentenced Carrera to a four-year prison term and imposed various fines, fees, and
assessments. In his appeal, Carrera asserts (1) there was insufficient evidence to support
his convictions for assault with a deadly weapon against the first victim, (2) the simple
assault committed against the second victim must be dismissed because it is a lesser
included offense of battery, and (3) the case must be remanded for a hearing on his ability
to pay the restitution fine and assessments. We agree with his second contention that the
assault conviction cannot stand, and because the matter must be remanded for
resentencing, the court may hold a hearing on Carrera’s ability to pay the restitution fine,
fees, and assessments. In all other respects, we affirm the judgment.
FACTS
On the day of the altercation, Juan V. (Juan) and his assistant Trevor P.
(Trevor) were making repairs to a vacant apartment unit.1 Juan was the apartment
complex’s property manager. As Juan was throwing away some trash in a bin behind the
complex, he noticed Carrera approach from an adjacent alleyway situated approximately
100 feet away. Juan recalled he saw Carrera was “walking strange from corner to corner
yelling and laughing and screaming[.]” Juan began speaking with Martha H., one of the
apartment tenants who also assisted Juan with management duties. Juan turned his back
to the alley when he spoke with Martha because she was standing inside a nearby garage.
Martha saw Carrera approach her garage and he was holding a bottle of
alcohol. She recalled he appeared to be “under the influence of some kind of drug or
something.” She explained that the reason she believed he was under the influence was

1
We will refer to the victims by their first names to protect their privacy.

2
because he “looked weird” and was “talking too much.” Carrera was not smiling, and
Martha feared he was going to do “something bad” and she ran away.
Meanwhile, Carrera positioned himself directly behind Juan. He asked
Juan to give him three dollars in exchange for a full-looking tequila bottle. Like Martha,
Juan perceived Carrera was under the influence because he was “acting weird” and “not
standing properly.” Juan stated he did not have any money, and Carrera became angry
and more insistent on making the sale.
Carrera wrapped his arm around Juan’s neck in a headlock, and pulled him
close while loudly stating, “come on man, I need money, just buy it off me, I need to go
to Huntington Beach.” Next, Carrera pulled his arm tighter and bumped his head hard
against Juan’s head. After being head-butted, Juan felt pain and was afraid. He heard
Carrera tell him to ask his wife (referring to Martha) if she had money.
Unable to break free from Carrera’s headlock, Juan pulled Carrera towards
the apartment where Trevor was working, hoping Trevor would help him. Juan got
Trevor’s attention by calling his name. Trevor did not immediately react because it
looked as if Carrera was Juan’s friend, embracing him around his neck. However, Trevor
intervened after he saw Juan motion for Trevor to call the police by making a phone sign
with his hands and mouthing the words. Instead of calling the police, Trevor was able to
break Juan free from Carrera’s headlock. Once out of Carrera’s grasp, Juan moved
himself away from Carrera and dialed 911.
After separating Carrera from Juan, Trevor went inside the apartment unit
intending to call the police. He was unable to make the call because Carrera followed
him inside and began speaking to him in Spanish. Trevor, who was not fluent in Spanish,
believed Carrera was trying to sell him the tequila bottle he was holding. Carrera tried to
give Trevor a hug. Trevor and Carrera walked outside the apartment, and Trevor let
Carrera hug him. Trevor explained, “I didn’t want to come off aggressive or
antagonistic, so I felt keeping the friendly attitude was better.” Once outside, Carrera

3
asked Trevor to pay four or five dollars for the tequila. When Trevor declined, Carrera
opened the bottle and took a drink. Trevor heard Carrera say a few words in English,
calling the tequila a “blessing” and he tried to give Trevor a drink. Carrera gave Trevor
the bottle, and Trevor set the bottle on the ground.
Carrera walked into the empty apartment unit and dropped a bag he was
carrying, while muttering, “‘these fuckers moved out.’” When Trevor asked Carrera to
come outside the apartment, he complied and moved towards Trevor to give him another
hug. Trevor noticed this hug was different because he felt Carrera touch his front and
back pockets. Carrera then hit Trevor twice in the ribs. Trevor described the attack as
two unfriendly quick jabs with a closed fist. The contact left red marks, but Trevor did
not feel any pain. Juan, who was speaking on his cell phone with the police dispatcher a
short distance away, confirmed he saw Carrera hit Trevor twice.
Trevor responded by pushing Carrera away and raising his fists. Carrera
shook his head to indicate he did not want to fight. Trevor returned to the apartment to
retrieve Carrera’s bag and, with his back turned to Carrera, he heard the sound of glass
breaking. Trevor gave Carrera the bag and “calmly but firmly” told him to leave.
Carrera grabbed his bag and ran. Carrera next encountered Juan, who was outside by the
trash cans and talking on the cellular phone with police dispatch.
From a distance of approximately 15 feet away, Juan watched Carrera toss
the bottle to the floor and pick up a piece of the broken glass. Carrera moved towards
Juan with the sharp edge of the glass facing Juan.
Juan heard Carrera angrily assert, “[T]his is all because of you, this is all
because of you.” Juan was afraid and understood Carrera was very mad and serious
about trying to hurt him. Juan saw Carrera’s arm was “sort of reeled back” and he was
afraid Carrera was going to kill him. Juan started backing away from Carrera while
continuing to talk on the phone to the police. When Carrera was just a few feet away,
Juan stated that if he came any closer, he would call the police. To Juan’s surprise,

4
Carrera tossed the glass aside and ran away. The police later detained Carrera, and Juan
positively identified him at an in-field identification.
Police officer David MacShane, who found Carrera walking shirtless down
the street, opined Carrera displayed symptoms of someone being under the influence.
Carrera was calm and admitted he had been drinking. MacShane asked Carrera to sit on
the curb, and when Carrera put his head between his legs, he either passed out or fell
asleep.
An information charged Carrera with aggravated assault (Pen. Code, § 245,
subd. (a)(4),2 count 1 [Juan]), assault with a deadly weapon (§ 245, subd. (a)(1), count 2
[Juan]), misdemeanor battery (§ 242, count 3 [Trevor]), and simple assault (§ 240, count
4 [Trevor]). It also alleged Carrera had suffered a prior serious felony within the
meaning of section 667, subdivision (a)(1), and a prior “strike” within the meaning of
sections 667, subdivisions (d) & (e)(1)(A), and 1170.12, subdivisions (b) & (c)(1)(A).
At trial, defense counsel attempted to impeach and highlight inconsistencies
in Juan’s testimony. Among the topics counsel discussed, was Juan’s failure to tell the
911 operator he was head-butted. When asked about this, Juan stated, “I believe I told
them that he hurt me. I couldn’t specify how he did.” Juan also denied having seen
Carrera in the area before, but the apartment owner testified Juan informed her about past
issues with Carrera. Counsel also asked Juan to explain why he told police officers the
apartment had surveillance cameras outside, but he did not provide any images of the
incident. Juan claimed the cameras were not operational on the day of the incident. In
addition, defense counsel drew attention to Juan’s inconsistent testimony about the
distance between himself and Carrera when he was holding the broken shard of glass. At
the time of the incident, Juan told a police officer Carrera was 10 feet away when he
picked up a broken piece of the bottle. At the preliminary hearing, Juan testified Carrera

2
All further statutory references are to the Penal Code, unless otherwise
indicated.

5
was 25 feet from him when he tossed and broke the bottle and picked up the broken neck.
At trial, Juan testified the distance was 15 feet and that Carrera had picked up the bottom
of the broken bottle.
The defense case consisted of three witnesses. The parties stipulated that if
Trevor’s grandmother (Grandmother), who owed the apartment complex, had been called
as a witness she would have testified Juan “had issues with . . . Carrera in the past.” They
stipulated her testimony would provide the following evidence: “[Juan] informed
[Grandmother] that . . . Carrera would always cut through their property to get onto
Commonwealth Avenue. [Juan] described . . . Carrera to be belligerent and mouth off
when asked not to cut through the property. [Juan] told [Grandmother] that he stopped
saying anything to . . . Carrera because of his behavior.”
Carrera’s 16-year-old brother (Brother), lived with his grandmother in an
apartment that abuts the alleyway adjacent to the property where the altercation took
place. Brother saw Carrera frequently outside in the alleyway. On three occasions, he
saw Juan harassing Carrera. Juan also harassed Brother by saying he looked like a
gangster and asked him to leave the area. Carrera’s grandmother, who lived with
Brother, stated Carrera would visit her apartment daily and he was welcome there.
A jury found Carrera guilty of the lesser included offense of assault for
count 1, and guilty as charged on the remaining counts. In a bifurcated bench trial, the
court determined Carrera’s prior conviction was true and denied his request to reduce
count 2 (assault with a deadly weapon) to a misdemeanor. The court sentenced him to
four years in prison, consisting of the low term of two years for count 2, doubled on
account of his prior “strike” offense, and concurrent 180-day county jail terms for counts
1 and 3. The court stayed the imposition of the sentence on count 4 and dismissed the
serious felony prior enhancement. The court imposed a $300 restitution fine (§ 1202.4),
and a $300 parole revocation fine (§ 1202.45), which was stayed pending successful

6
completion of parole. The court also imposed and stayed a court operations assessment
of $160 (§ 1465.8) and a court facilities assessment of $120 (Gov. Code, § 70373).
DISCUSSION
I. Sufficiency of the Evidence
Carrera asserts there was insufficient evidence to support his conviction for
assault with a deadly weapon. Specifically, he focuses on the purported lack of evidence
that the “manner in which the broken bottle was used in this instance” proved the glass
shard was “capable of producing, and likely to produce, death or great bodily injury.”
We conclude the contention lacks merit.
A. Applicable Legal Principles
In considering a claim that insufficient evidence supports a criminal
conviction, an appellate court “reviews the entire record, in the light most favorable to the
judgment, for the presence of substantial evidence,” which is “evidence sufficiently
reasonable, credible, and of such solid value” that a reasonable trier of fact could have
found “‘the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v.
Chatman (2006) 38 Cal.4th 344, 389.)
In determining whether the record contains substantial evidence, we
“presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008)
43 Cal.4th 327, 357 (Zamudio).)

7
 Section 245, subdivision (a)(1), punishes assaults upon persons “with a
deadly weapon or instrument other than a firearm.” The term deadly weapon means
“‘any object, instrument, or weapon which is used in such a manner as to be capable of
producing and likely to produce, death or great bodily injury.’ [Citation.]” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) “Some . . . objects, such as dirks
and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use
for which they are designed establishes their character as such. [Citations.] Other
objects, while not deadly per se, may be used, under certain circumstances, in a manner
likely to produce death or great bodily injury.” (Id. at p. 1029.) “For example, a bottle or
a pencil, while not deadly per se, may be a deadly weapon within the meaning of section
245, subdivision (a)(1), when used in a manner capable of producing and likely to
produce great bodily injury. [Citations.]” (People v. Brown (2012) 210 Cal.App.4th 1, 7
(Brown).) Great bodily injury, for purposes of section 245, means significant or
substantial injury. (Brown, supra, 210 Cal.App.4th at p. 7.)
Determining whether an object that is not inherently deadly or dangerous
was used as a deadly weapon is a question of fact for the jury. (Aguilar, supra,
16 Cal.4th at p. 1029.) “In determining whether an object not inherently deadly or
dangerous is used as such, the trier of fact may consider the nature of the object, the
manner in which it is used, and all other facts relevant to the issue. [Citations.]” (Ibid.)
B. Analysis
In his briefing, Carrera acknowledges a broken glass bottle could be
deemed inherently deadly or dangerous. (Citing People v. Cabral (1975) 51 Cal.App.3d
707, 712-713.) He asserts that in this case, however, there was insufficient evidence “the
manner in which the broken bottle was used” was deadly or dangerous. He provides the
following arguments to support this contention: (1) Juan’s testimony was questionable
because his claims about past interactions was refuted by other testimony; (2) there was

8
evidence Juan held a grudge against Carrera due to prior contacts; (3) it was suspicious
the apartment’s surveillance cameras were not operational the day of the incident;
(4) Juan gave inconsistent accounts of the distance between himself and Carrera holding
the broken glass, ranging from 25 feet to 10 feet; (5) Juan gave inconsistent accounts
about where Carrera was holding the bottle (by the bottom or the neck); (6) Juan’s
testimony was untrustworthy because he did not mention Carrera approached him with
the broken shard of glass to the 911 police dispatcher; (7) Juan did not initially mention
the assault with the broken glass to the police, and consequently the crime scene
investigator had to be called back to photograph the broken bottle’s location; and (8) Juan
testified Carrera held the bottle to his side and did not wave or display the glass.
Only the last contention directly addresses the question of whether the
manner in which Carrera used the broken glass was capable of producing great bodily
injury. All the other arguments pertain to whether Juan’s account of the attack was
credible. As mentioned, in reviewing the sufficiency of the evidence, we cannot resolve
credibility issues or evidentiary conflicts. (Zamudio, supra, 43 Cal.4th at p. 357
[“‘testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends’”].)
After reviewing the record, we conclude there was sufficient evidence to
support the jury’s conclusion regarding the manner of use. As discussed earlier, Juan
provided a detailed account of the assault. He remembered Carrera “approached [him]
with the glass, sharp edge facing [him].” Juan described feeling “afraid, really afraid.”
When questioned further, Juan elaborated, “I -- As soon as he started coming towards me
with the bottle in his hand trying to hurt me saying, ‘this is all because of you,’ I thought
I was gonna [sic] die for the first time.” When counsel asked Juan if Carrera was holding
the bottle down by his side “like this,” Juan replied “no,” however, the record does not

9
indicate what motion counsel was making. Later, Juan indicated Carrera was holding the
weapon with his right hand somewhere between his hip and rib area. Thus, the bottle was
certainly near Carrera’s side but also positioned with the “glass shards . . . pointing”
towards the victim. Moreover, Carrera’s arm was “sort of reeled back.” On cross-
examination, Juan added Carrera “came fast towards” him.
When viewed in context, Carrera’s rapid advance amply supports the
conclusion Carrera wielded the broken shard of glass in a manner likely to produce death
or great bodily injury. Carrera did not casually pick up a glass bottle in a non-threatening
manner while speaking with a friend. Rather, only moments before breaking the bottle,
Carrera forced Juan into a strong headlock, from which Juan needed help breaking free.
Carrera injured Juan by head-butting him. Carrera did not calmly walk towards Juan
after collecting a sharp piece of broken glass. He reeled his arm back as he rapidly
advanced forward with the jagged edge pointed toward Juan. If Juan had not backed
away or dissuaded Carrera by stating he was calling the police, it was likely Carrera
would have cut and injured Juan with the weapon he created.
We are not persuaded by Carrera’s argument there was “no evidence” he
threatened Juan with the bottle because he held it by his side rather than waving it or
displaying the “bottle in a threatening manner.” This assertion ignores Juan’s testimony
he felt afraid because Carrera angrily held a broken piece of glass, not just a bottle. And,
although Carrera held the weapon by his side, he wound his arm backwards as he quickly
moved forward. This supported the conclusion Carrera was preparing to propel his arm
forward with added momentum and force in anticipation of contact with Juan. We also
cannot overlook that Carrera advanced after asserting Juan was at fault for something.
Because it appeared Carrera was blaming Juan for wrongdoing as he approached with a
weapon, it was reasonable for the jury to conclude Carrera intended some sort of
retaliation. He had already proved himself capable and unafraid of striking Juan and
Trevor. Other courts have held that an assault with a deadly weapon can occur even

10
when the defendant never swings the weapon. (See People v. Bernal (2019) 42
Cal.App.5th 1160, 1168 [affirming conviction for assault with deadly weapon where
defendant held up knife to victim and asked, “‘Do you want to do this?’”].) We conclude
the jury had ample evidence from which to conclude Juan would have been stabbed,
sliced, or otherwise seriously wounded by the sharp glass shard had he not moved out of
the way.
Citing to In re B.M. (2018) 6 Cal.5th 528 (B.M.), Carrera notes Juan was
not actually injured and evidence of “the mere possibility of a serious injury” was
insufficient to support the conviction. That case is not analogous to this one. In the B.M.
case, our Supreme Court clarified what it means for an object to be “‘used in such a
manner as to be capable of producing and likely to produce, death or great bodily
injury.’” (Id. at pp. 532-533.) There, the minor, B.M., stabbed at her sister’s blanket-
covered legs using a butter knife. (Id. at p. 531.) The evidence showed the butter knife
did not “pierce” the blanket or cause the sister serious bodily injury. (Id. at p. 531.)
Based on these facts, the Supreme Court found it “questionable” whether the knife was
“capable of causing great bodily injury” and there was insufficient evidence to support
that the minor’s use of the knife was “likely to do so.” (Id. at pp. 530, 533, 539.) The
court clarified the meaning of the statutory language “likely to cause” in several respects.
First, the prong “requires more than a mere possibility that serious injury
could have resulted from the way the object was used.” (B.M., supra, 6 Cal.5th at p. 534,
italics added.) Second, “the determination . . . must rest on evidence of how the
defendant actually ‘used’ the object” rather than “conjecture as to how the object could
have been used.” (Ibid.) Third, “the extent of actual injury or lack of injury is also
relevant” because it “may suggest that the nature of the object or the way it was used was
not capable of producing or likely to produce death or serious harm.” (Id. at p. 535.) The
court explained the appellate court engaged in conjecture when concluding the minor
could have injured her sister’s face because the evidence showed the minor used the

11
butter knife only in the area of her sister’s covered legs. “There is no evidence that B.M.
stabbed, sliced, or pointed the butter knife toward or near [her sister’s] face, or that B.M.
attempted or threatened to do so. Nor is there evidence that B.M. was flailing her hand
with the butter knife or otherwise wielding it wildly or uncontrollably. [Citation.]”
(Ibid.) The Supreme Court concluded the appellate court’s “inference of potential injury
based on evidence of how B.M. actually used the butter knife” was not reasonable.
Finally, the court clarified that “an aggressor should not receive the benefit of a potential
victim fortuitously taking a defensive measure or being removed from harm’s way once
an assault is already underway.” (Id. at p. 537.)
Applying these principles, the Supreme Court concluded the minor’s use of
the butter knife was not likely to cause death or great bodily injury. (B.M., supra,
6 Cal.5th at pp. 536-537.) In contrast, Carrera broke a bottle to make a sharp pointed
weapon, unlike a blunt butter knife, that could easily cut or wound anyone in close
contact. Carrera’s strength and ability to cause harm was evidenced by his prior conduct
of holding Juan in a headlock and head-butting him. Finally, unlike the B.M. case, this is
not a case where the lack of injury is attributable to the nature of the object or the manner
in which it was actually used. (B.M., supra, 6 Cal.5th at pp. 534-535.) The evidence
indicates the lack of injury was likely because Juan fortuitously backed away as Carrera
moved towards him and his threat to call the police eventually dissuaded Carrera from
continuing. The fact great bodily injury was avoided does not help Carrera. (B.M.,
supra, 6 Cal.5th at p. 537.)
In conclusion, Carrera’s homemade weapon was sharp enough to cut Juan,
who was not protected by anything that would have stopped the weapon’s progress had
Carrera actually made contact. Here, the lack of an injury does not suggest the razor-
sharp glass shard was unlikely to produce serious bodily injury. Based on all of the
above, we conclude substantial evidence supports the jury’s conclusion that the described

12
use of glass shards was either capable of causing, or likely to cause, great bodily injury to
Juan.
II. Lesser Included Offense
Carrera was convicted of both misdemeanor battery (count 3) and
misdemeanor (assault) with respect to his interaction with Trevor. He asserts assault is
the lesser included offense of battery because the convictions are based on the “single act
of ‘two quick jabs’” to Trevor’s ribs. The Attorney General asserts the convictions did
not arise out of the same act or course of conduct. It maintains that when Carrera hit
Trevor the first time, he completed the battery alleged in count 3. When he struck Trevor
a second time, he committed a separate and distinct act of assault. It asserts, “The fact
that the second punch . . . found its mark does not negate the jury’s simple assault
verdict.” The Attorney General asserts the “completed act test” permits multiple
convictions involving the same offense. We disagree.
A. Applicable Legal Principles.
“In general, a person may be convicted of, although not punished for, more
than one crime arising out of the same act or course of conduct. ‘In California, a single
act or course of conduct by a defendant can lead to convictions “of any number of the
offenses charged.” (§ 954, italics added; [citation].)’ [Citation.] Section 954 generally
permits multiple conviction. Section 654 is its counterpart concerning punishment. It
prohibits multiple punishment for the same ‘act or omission.’ When section 954 permits
multiple conviction, but section 654 prohibits multiple punishment, the trial court must
stay execution of sentence on the convictions for which multiple punishment is
prohibited. [Citations.]” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 (Reed).)
In this case, the trial court stayed execution of the sentence on the assault
(count 4) conviction after determining the crime arose out of the same act or course of
conduct as the battery (count 3). Therefore, multiple punishment is not at issue. The

13
question presented is whether there could be multiple convictions for Carrera’s conduct
with respect to Trevor.
As Carrera correctly points out, “A judicially created exception to the
general rule permitting multiple conviction ‘prohibits multiple convictions based on
necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without
also necessarily committing a lesser offense, the latter is a lesser included offense within
the former.’ [Citation.]” (Reed, supra, 38 Cal.4th at p. 1227.) It is well settled, “A
defendant who commits a battery may not be convicted of both battery and assault,
because ‘[a]n assault is a necessary element of battery, and it is impossible to commit
battery without assaulting the victim.’ [Citation.]” (People v. Ortega (1998) 19 Cal.4th
686, 692, disapproved on another ground in Reed, supra, 38 Cal.4th at p. 1228.)
B. Analysis
The Attorney General asserts the following theory: “The restriction on
multiple convictions makes sense where the lesser offense is committed in the course of
committing the greater offense. A person who raises his fist (a simple assault) and then
proceeds to strike a victim (a battery) could not be convicted of both offenses. (See, e.g.,
People v. Greer (1947) 30 Cal.2d 589, 5973 [“An assault is a necessary element of
battery, and it is impossible to commit battery without assaulting the victim”]; People v.
McDaniels (1902) 137 Cal. 192, 194 [“there can be no battery without an assault”].) On
the other hand, where the greater offense has been completed, there should be no bar to
conviction of a subsequent lesser offense. Thus, in the example above, if the defendant
strikes a victim, and thereafter raises his fist to threaten a separate assault, there should be
no reason why the defendant could not be charged with both offenses.”

3
People v. Greer (1947) 30 Cal.2d 589, 596-597, not followed on other
grounds in People v. Pearson (1986) 42 Cal.3d 351, 358, and overruled on other grounds
by People v. Fields (1996) 13 Cal.4th 289, fn. 6.)

14
 Setting aside the “lesser include offense” issue for a moment, we must first
address the premise of the Attorney General’s argument that if the defendant repeatedly
strikes a victim there should be no reason why the defendant could not be convicted of
multiple assaults. This is incorrect.
Assault is defined as “an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.” (§ 240.) We read this language to
mean an attempt to inflict a single injury is a single assault. And our Supreme Court
concluded over a century ago, the rapid and uninterrupted infliction of multiple blows on
a victim is but one assault: “If one unlawfully assails another with his two hands, first
striking at him with one hand and immediately thereafter with the other, no one would
say that there were two offenses. The offense would be the one unlawful attempt,
coupled with a present ability, to commit a violent injury upon the other’s person, and
each effort made in what constituted only the same attempt to accomplish this result
would constitute only a single element of that attempt.” (People v. Oppenheimer (1909)
156 Cal. 733, 740 (Oppenheimer).) This sound legal reasoning is still applicable today.
The cases cited by the Attorney General involved crimes specifically
defining their completion separated by intervening events. For example, the Attorney
General maintains we must apply the completed act test used by the Supreme Court in a
case where multiple convictions involved the same offense. (People v. Harrison (1989)
48 Cal.3d 321 (Harrison) [defendant convicted of multiple digital penetrations of victim
during 10-minute assault].) The case is inapt.
In Harrison, the court dealt with three different sexual assault convictions
in which multiple convictions were easily identifiable since the statute governing them
dealt with a particularized crime that had a well-defined endpoint. (Harrison, supra,
48 Cal.3d at pp. 328-329.) The Supreme Court considered the meaning of section 289,
which “made clear that the crime [of forcible sexual penetration] is committed simply by
causing a proscribed ‘penetration, however slight.’” (Ibid.) From this “however slight”

15
language, the court “conclude[d] that, assuming all other elements of the offense are
present, a violation is complete the moment such ‘penetration’ occurs.” (Ibid., italics
added.) And from that conclusion, the court determined, “It follows logically that a new
and separate violation of section 289 is ‘completed’ each time a new and separate
‘penetration, however slight’ occurs”—even when one proscribed penetration occurs
immediately after another. (Id. at p. 329.)
The court also decided section 654 did not bar multiple punishments
because after each act of digital penetration the victim was able to pull away. The court
explained there was “no legal or logical bar to separate punishment where, as here, each
of defendant’s [digital penetrations] was clearly volitional, criminal and occasioned by
separate acts of force. . . . [D]efendant should also not be rewarded where, instead of
taking advantage of an opportunity to walk away from the victim, he voluntarily resumed
his sexually assaultive behavior.” (Harrison, supra, 48 Cal.3d at p. 328, italics omitted.)
As discussed above, the relevant statutes do not define the crimes of assault or battery as
being specifically completed at any particular moment, unlike section 289. The rapid and
uninterrupted infliction of multiple blows on a victim is but one assault. (See
Oppenheimer, supra, 156 Cal. at p. 740.)
The Attorney General also cites cases that have upheld more than one
conviction when the defendant used multiple instrumentalities to inflict separate injuries
over the course of the assault. (See People v. Kopp (2019) 38 Cal.App.5th 47, 63 [first
count of assault based on injuries inflicted with a knife and second count based on
injuries inflicted by blunt force trauma inflicted by punches and kicks to victim’s body
and head]; People v. Johnson (2007) 150 Cal.App.4th 1467, 1471-1472 [single incident
of domestic violence that included choking, stabbing, and beating victim supported three
separate convictions for corporal injury on co-habitant].) Such was not the case here.
The Attorney General also directs our attention to People v. Trotter (1992)
7 Cal.App.4th 363, 366, where the defendant fired a gunshot at a police vehicle, fired a

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second shot about a minute later, and fired a third shot moments after the second shot.
The defendant did not appeal the three convictions for assault on a police officer, and the
court only considered application of section 654. It affirmed imposition of consecutive
sentences, explaining, “even under the long recognized ‘intent and objective’ test, each
shot evinced a separate intent to do violence.” (Id. at p. 368.) The case is inapt because
here the trial court determined section 654 applied because the crimes (counts 3 and 4)
arose out of the same act or course of conduct.
We note the prosecutor did not pursue the Attorney General’s abstract
theory of multiple assaults at trial. There is nothing in the record suggesting the
prosecutor intended to charge or convict Carrera of two assaults or two batteries based on
the two blows. The information alleged only one count of assault and one count of
battery, and in closing argument, the prosecutor referred to Carrera’s actions with respect
to Trevor as a single act. After discussing the charges relating to the head-butting
incident, the prosecutor stated, “And we also have a simple battery or simple assault as to
Trevor, that’s as to those two quick jabs down there. [¶] Trevor should be easy on this
case, those counts should be very easy on you. I think those are fairly undisputed, I
would say.” (Italics added.)
The prosecutor did not suggest count 4 was based on a blow distinct from
the punches relied on to support count 3. Defense counsel, in closing argument, twice
told the jury count 3, battery, was for “the soft punches on Trevor” and count 4, assault,
was “what came right before the soft punches.” Defense counsel argued the punches
should not be called a battery based on Juan’s statement to the 911 dispatcher that
Carrera barely touched Trevor. When the dispatcher questioned this, Juan stated Trevor
was fine and it was “no big deal.” Counsel also argued there was no battery if there was
no touching and no assault because Trevor did not anticipate the soft punches while he
was being hugged. Simply stated, the jury was asked to determine if the single

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aggressive act was a battery or the lesser included offense of assault. But now the
Attorney General is asking for two convictions for a single incident.
We conclude Carrera’s two quick jabs did not reflect an attempt to inflict
more than one injury and the two hits were not interrupted by intervening events.
Consequently, we reject the theory Carrera’s two jabs amounted to a separate criminal
assault or two separate batteries. We conclude both convictions arose out of the same act
or course of conduct, and because Carrera does not challenge the sufficiency of the
evidence to support his conviction of battery, it is undisputed the evidence supports his
conviction of the greater offense. Accordingly, we reverse the conviction of simple
assault because Carrera cannot be convicted of both the greater and lesser offense.
(People v. Sanders (2012) 55 Cal.4th 731, 736 [“When a defendant is found guilty of
both a greater and a necessarily lesser included offense arising out of the same act or
course of conduct, and the evidence supports the verdict on the greater offense, that
conviction is controlling, and the conviction of the lesser offense must be reversed”].)
III. Ability to Pay Restitution and Assessments
During Carrera’s sentencing hearing, the court rejected the probation
department’s recommendation that it impose a $1,000 restitution fine (§ 1202.4), reduced
it to $300, and imposed a parole revocation restitution fine (§ 1202.45) in the same
amount, which it stayed. The court clarified “This stay to be permanent upon successful
completion of parole.”
With respect to the mandatory criminal and court costs, the court asked
defense counsel if she waived recitation of those fines and fees. Counsel replied, “Yes,
your honor. I’d ask the court to waive any fees that the court can waive. My client
clearly has no money. He’s transient, he’s going to prison, he’s still a dependent until
he’s 21. The court ruled as follows: “All right, the court will stay payment to the end of

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the parole period. Any motion to reduce or strike then based upon any ambiguity can be
raised as to now and then as appropriate. His situation may change hopefully.” It
imposed a $160 court operations assessment (§ 1465.8); and a $120 court facilities
assessment (Gov. Code, § 70373).
Carrera asserts that while a court may stay payment until the end of his
parole period, the court must decide payment based on a defendant’s present, not future
ability to pay. (People v Duenas (2019) 30 Cal.App.5th 1157, 1164.) Accordingly, he
maintains the matter must be remanded for the limited purpose of an ability to pay
hearing. The Attorney General asserts Carrera forfeited his argument with respect to the
restitution fine because his counsel did not object when the court imposed the minimum
amount. With respect to the assessments, the Attorney General asserts the court lacked
authority to stay execution until after he was released and completed parole but any error
was harmless.
In the interests of justice, we conclude the court should hold an ability to
pay hearing when the case is remanded for the other reasons stated in this opinion. The
trial court’s statements and actions suggest it had questions concerning Carrera’s ability
to pay fines, fees, and assessments. We need not decide if sentencing errors were
forfeited or should be deemed harmless.
DISPOSITION
We reverse Carrera’s conviction for simple assault (count 4) and remand
the matter to the superior court as follows: (1) to hold an ability to pay hearing with
respect to all previous fines, fees, and assessments imposed by the trial court; (2) to
resentence Carrera; and (3) to amend the abstract of judgment accordingly, and forward a
copy to the Department of Corrections and Rehabilitation, Division of Adult Operations.

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We offer no opinion regarding how the superior court should rule on restitution, fines, or
fees. In all other respects, we affirm the judgment.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

GOETHALS, J.

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