(Super. Ct. No. 11SCR07209)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Angel Lee Arismendez stabbed his girlfriend K. outside the car they had just gotten out of, while two of K.'s children (N. and B.) were in the backseat. A jury found defendant guilty of assault with a deadly weapon (count I), assault with force likely to produce great bodily injury (count II), battery causing great bodily injury (count III), corporal injury on a cohabitant (count IV), and child endangerment of N. (count V). Defendant admitted he had one prior robbery conviction. The court sentenced him to 18 years and eight months in prison.
On appeal, defendant raises five contentions related to the sufficiency of evidence and sentence. We agree with three. One, defendant's conviction for child endangerment (count V) must be reversed (and the attached enhancements stricken) because there was insufficient evidence defendant had care or custody of N. Two, defendant's conviction for assault with force likely to produce great bodily injury (count II) must be reversed because that offense is not a separate offense from assault with a deadly weapon (count I). And three, defendant's one-year enhancement pursuant to Penal Code*fn1 section 667.5, subdivision (b) must be stricken because defendant neither admitted he had been convicted of the underlying felony (which was possessing an illegal weapon) nor did the People present evidence to support the enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
On July 8, 2011, defendant had been dating K. for about two and one-half months. He spent the night at her apartment "[j]ust about" every day. Her four children lived in the apartment as well, including three-year-old N.
That day, K.'s mother lent her car to defendant and K. Defendant dropped off K.'s mother at a 12:30 p.m. hair appointment. Defendant was then supposed to go back to the apartment and get K. to take her to a 1:00 p.m. "WIC" appointment.
In the "early afternoon," one of the residents saw K. driving the car "a little fast" into the apartment complex. K. parked and jumped out of the car, waving her hands like she was getting stung by a bee or wasp. Defendant got out of the "passenger side" and "t[ook] off down the drive[way]." K. "started after him" but then returned to the car. When the resident saw that K.'s arm was bloody, K. told her she was "all right" and then drove off in the car to the hospital.
At 2:13 p.m., K. arrived at the hospital's emergency room. She was bleeding from three stab wounds on her upper arms and one on her right cheek. She told the hospital, "[s]he got between two men who were fighting," but the hospital did not believe her. She was discharged.
Police found K. at her apartment in a closet with defendant. At 5:00 p.m., police interviewed her. She said she was arguing with defendant about "life and money and everything." She then "entered the passenger door," and hit defendant on the side of his head with her fist. She got out of the car, and then defendant stabbed her. At the time she was stabbed, they were near the driver's side door, which was open. Defendant ran off, and she chased him because he had her phone. Two of her children were in the backseat.
The car was returned to K.'s mother that day. There was a cut in the steering wheel and blood on the driver's side area.
Five days after the stabbing, Child Protective Services (CPS) interviewed K. The CPS worker told K. there had been a referral about the incident, and the worker read it to her. As read to K., the referral stated that K. punched defendant on the side of the face, they both got out the car, defendant stabbed K., and then he ran. "[D]uring this altercation, [N.] and [B.] were in the back seat [sic] of the vehicle." "[T]hree year old [N.] was able to talk about mommy and 'daddy' being in a fight.' "
K. talked to defendant on the telephone while he was in jail for stabbing her. She asked defendant how she was going to explain the stabbing. He told her, "At the high school, yeah. At the high school when I fuckin' dropped the fuckin' knife cause I was drunk or whatever. . . ." At ...