(Super. Ct. No. 10F06278)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Sean Michael Laufer was found guilty by a jury of simple assault*fn1 (count one), battery with infliction of serious bodily injury (count two) and simple battery (count three). He was sentenced to prison for three years and the court imposed various fees and fines.
On appeal, defendant contends his conviction for simple assault must be reversed, because this crime is a lesser included offense of battery with the infliction of serious bodily injury, the crime of which he was convicted. The People agree.
Defendant also contends the court erred in imposing jail booking and classification fees, because there was no finding, nor evidence to support a finding, he had the ability to pay. The People respond that his argument on this point is forfeited. We shall reverse and discuss defendant's conviction in count one and otherwise affirm the judgment.
The victim on counts one and two, Jesse Johnston, attempted to intervene in a bar when he saw and overheard defendant arguing with a woman: defendant grabbed the woman's arm, said "[w]e're leaving," and started trying to drag her away. In response, defendant hit Johnston in the left eye. Johnston suffered cuts above and below his eye and required surgery.*fn2 A few minutes later, defendant pushed the woman with whom he had been arguing, and she fell into a window and broke it.
Defendant was charged with assaulting Johnston with a deadly weapon, a beer bottle (count one) and with committing battery, resulting in the infliction of serious bodily injury (count two). He was also charged with misdemeanor battery against the woman whom he pushed into the window (count three).
On count one, the jury acquitted defendant of the charge of assault with a deadly weapon, but found him guilty of the lesser included offense of simple assault. It found him guilty of the charges alleged in counts two and three.