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The People v. Gary Steven Loesch

September 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GARY STEVEN LOESCH, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F06806)

The opinion of the court was delivered by: Hull , Acting P.J.

P. v. Loesch

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After a jury convicted defendant Gary Steven Loesch of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); unspecified section references that follow are to the Penal Code), the trial court found true an allegation that a prior Oregon conviction for attempted assault in the first degree qualified as a strike under the three strikes law. As a result, the court imposed an aggregate prison term of 12 years, consisting of the middle term of three years doubled for the prior strike conviction (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus five years for the habitual criminal sentencing enhancement (§ 667, subd. (a)) and one year for a prior prison term (§ 667.5, subd. (b)). (The court imposed and stayed sentencing on a second prior prison term allegation.)

On appeal, defendant contends that (1) the Oregon conviction did not qualify as a serious felony under the three strikes law and (2) the court erred in failing to instruct the jury on the lesser included offense of simple assault. Neither claim has merit and we therefore affirm the judgment.

FACTS AND PROCEEDINGS

Given the nature of defendant's claims, we provide only a brief synopsis of the underlying facts.

Defendant got into an argument with a roommate and their disagreement moved from their apartment to the parking lot. As the argument became more physical, defendant got into his truck, put it in gear, revved the engine and drove toward his roommate and some others. Defendant pinned the victim between his truck and another vehicle, lifting the victim off the ground. The victim was released only when defendant put the truck into reverse, backed out, and sped out from the parking lot.

Defendant was charged with assault with a deadly weapon. He raised claims of accident, self-defense, and necessity, asserting that he hit the victim unintentionally as he tried to escape being attacked. An automotive services director testified that defendant's truck was in poor shape and leaked power steering fluid, making it difficult to steer when fluid ran low. The witness testified that he did not know the condition of defendant's truck on the date of the accident.

The jury convicted defendant of assault with a deadly weapon as charged.

As discussed in further detail below, the trial court found a prior Oregon felony conviction to be true and also found that it qualified as a prior ...


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