(Super. Ct. No. 03F05154)
The opinion of the court was delivered by: Cantil-sakauye ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a joint jury trial, defendant Eulalio Guerrero III (Guerrero) was convicted of felony evading a police officer (Veh. Code, § 2800.2, subd. (a)) and assault by means of force likely to produce great bodily injury, with an enhancement for personally inflicting great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)).*fn1 Defendant Miguel Martinez (Martinez) was convicted of assault by means of force likely to produce great bodily injury, with an enhancement for personally inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)).
Guerrero was sentenced to five years and eight months in prison, execution of sentence was suspended, and he was placed on probation subject to various conditions, including 365 days in jail with 75 days' presentence custody credit.
The court sentenced Martinez to a five-year prison term, suspended execution of sentence, and placed him on probation with various conditions, including a 365-day county jail term with 45 days' presentence custody credit.
On appeal, the defendants contend there was insufficient evidence to support their respective great bodily injury enhancements, and instructional error on group assault. Guerrero contends the court erred in failing to instruct on the lesser included offense of simple assault, while Martinez contends there is an error in the minute order. We shall order a correction to the minute order and affirm.*fn2
In June 2003, Nina Martinez (Nina),*fn3 Martinez's sister, threw a party at her home. The 30 to 40 attendees were primarily from Nina's extended family and foster family.
Alcohol was served, including beer and hard liquor. An altercation started in the backyard of Nina's house at around 10:30 p.m. After that fight resolved, the melee moved to the front of the house, breaking into fights throughout the street. In Nina's words, "It was like a big family riot."
The instant case stems from a group assault committed by Martinez and Guerrero against three victims: Jesse Rosas (Jesse) in the backyard and against Jesse's wife, Noel Rosas, (Noel) and his uncle Louie Rojas (Louie) in the front yard. This case includes Guerrero's attempt to flee from the police in his car afterward. Both defendants were convicted of the assault charges of Jesse but were not convicted on the counts involving Noel and Louie.
The Backyard Melee: The Assault on Jesse
Jose Labrado (Jose) is Nina's foster brother, and the cousin of Louie, Robert Rojas (Robert), and Jesse. Jose got to the party at around 6:00 p.m. and went to the backyard, where he saw defendants Martinez with Guerrero and another man. After an argument between Guerrero and Little Louie, Louie's son, in which Robert intervened, the argument dissipated.
Martinez then started to argue with Little Louie. Robert, Louie, and both defendants started pushing and punching. Other people tried to intervene, and roughly seven to eight people were involved.
Jesse tried to break up the backyard fight but, according to Jose, "got his butt whooped." Jesse was thrown on the floor, and was kicked in the ribs and upper body by Martinez. Jose intervened to protect Jesse. Jose was hit from behind and momentarily blacked out. When he helped Jesse to his feet, the area had cleared out. Jesse was bleeding from the nose and possibly from the mouth.
Jose then went to the front yard, where many people were fighting. Someone was trying to ram his cousin's head into some concrete; as he went to protect her, someone jumped Jose from behind, causing him to fall and break his arm. Jose went to Jesse's car so that Jesse's wife Noel could drive him to the hospital. As Noel was getting in the car, defendant Guerrero drove his car right at her, forcing Noel to jump in the car to avoid being hit.
Jesse testified to his assault in the backyard. He attended the party with his wife, Noel, and daughter. He was in the back patio at around 10:30 p.m., when a panicked Little Louie said a couple of guys wanted to start a fight with him. Louie and Robert kept telling the two men, Martinez and a long-haired man with a ponytail, "It's cool, you know, let it go." However, a fight soon started between Louie, Robert, Guerrero, and Martinez.
Someone struck Jesse; within seconds he was on the ground, helpless, getting punched and kicked all over his body. He remembered seeing two men, Martinez and the long-haired man, kicking and hitting him. ...