California Court of Appeals, Third District, Sacramento
APPEAL from a judgment of the Superior Court of Sacramento County Nos. 12F00971 & 12F03331, Jack V. Sapunor, Judge. (Retired judge of the Sacramento Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
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Alison E. Kaylor, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Meuller, Deputy Attorneys General, for Plaintiff and Respondent.
In case No. 12F03331, a jury found defendant Brenton Ezekiel James guilty of battery against a transportation worker (Pen. Code,  § 243.3), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), misdemeanor resisting, delaying, and obstructing an officer (§ 148, subd. (a)(1)), and misdemeanor willful harm or injury to a child (§ 273a, subd. (b)). In a bifurcated proceeding, the trial court found true allegations defendant committed the battery while released from custody in case No. 12F00971 (§ 12022.1) and had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Case No. 12F03331 was joined with case No. 12F00971 for sentencing. Defendant was sentenced to an aggregate term of 10 years 4 months in state prison. In case No. 12F03331, defendant was sentenced to six years for assault by means likely to produce great bodily injury and a consecutive two years for the on-bail enhancement. Defendant’s sentence for assault against a transportation worker was stayed pursuant to section 654, and he was sentenced to time served on the misdemeanor convictions. In case No. 12F00971, defendant was sentenced to one year for assault with a deadly weapon, one year four months for first degree burglary, both to run consecutive to defendant’s sentence in case No. 12F03331, and time served for misdemeanor battery.
Defendant appeals from the judgment, which encompasses both cases; however, the issues raised in his briefing on appeal only concern case No. 12F03331. Defendant contends (1) the trial court erred in failing to sua sponte instruct the jury on battery on a person on public transportation
(§ 243.35) as a lesser included offense of battery against a transportation worker and (2) there is no substantial evidence to support defendant’s conviction for battery against a transportation worker because there is no evidence the victim of the battery was a “station agent” within the meaning of section 243.3.
We shall conclude that battery on a person on public transportation is not a lesser included offense of battery against a transportation worker; and thus, the trial court did not err in failing to instruct on battery on a person on public transportation. We shall further conclude that there is no evidence, substantial or otherwise, to support a finding that the victim of the battery was a “station agent” within the meaning of section 243.3, and therefore shall reverse the judgment, modify ...