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People v. Anthony11/5/2004
ent. But none of the charges were unduly inflammatory; there were no charges that defendant had committed any violent offenses, and nobody was injured other than defendant in the accident. And notwithstanding the fact that the trial involving the first incident initially resulted in a deadlocked jury, it was not a weak case. The prosecutor had persuasive evidence against defendant in both cases, including the observations of witnesses to his driving and conduct shortly thereafter, and the subsequent blood-alcohol tests that showed his blood-alcohol level was well above the legal limit. Finally, none of the charges carried the death penalty.
Nor does the analysis change when we consider what actually occurred at trial. The charges and evidence presented were sufficiently discrete that the jury could not have been confused. And the jury carefully assessed each of the charges individually, as evidenced by the fact that it returned "not true" findings with respect to allegations defendant had a .20 percent or more blood-alcohol level in the first incident. (See Veh.Code, § 23578.) Accordingly, there is no reason to believe consolidation caused defendant gross unfairness so as to deny him due process. (See Mendoza, supra, 24 Cal.4th at p. 162.)
II. Strike Enhancement
Defendant claims there is insufficient evidence to sustain the strike enhancement. The prior case at issue involved charges of assault with a deadly weapon pursuant to Penal Code section 245, subdivision (a)(1), including one weapon described as "a knife." The evidence presented, including the jury verdict form, the abstract of judgment, and the amended abstract, show that defendant was convicted of three counts of assault with a deadly weapon for this offense.
Defendant claims the evidence is nevertheless insufficient to show the offense was a strike under the Three Strikes law. He argues there was no evidence he personally used the knife or personally inflicted great bodily injury, and that a showing of one of these elements is required. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 (Rodriguez ).)
As the People observe, the appellate court decision in People v.. Luna (2003) 113 Cal.App.4th 395 (Luna ), explains why defendant's argument is flawed. The appellate court explained: "[A]fter January 15, 1998, when [Rodriguez, supra, 17 Cal.4th 253] was decided, the voters adopted Proposition 21 in the March 7, 2000, Primary Election. Among the effects of Proposition 21 was the adoption of Penal Code section 1192.7, subdivision (c)(31) which deletes for serious felony purposes the personal use requirement for assault with a deadly weapon. Penal Code section 1192.7, subdivision (c)(31) states: 'As used in this section, "serious felony" means any of the following: [ ] (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245....' [Citation.] As can be noted, Penal Code section 1192.7, subdivision (c)(31) merely requires that the accused previously have been convicted of 'assault with a deadly weapon ... in violation of Section 245.' There is no requirement that the accused personally use the deadly weapon as in Penal Code section 1192.7, subdivisions (c)(8) and (c)(23)." (Luna, supra, at p. 398.)
*4 Accordingly, the evidence showing defendant was convicted of assault with a deadly weapon is sufficient to support the finding of the prior strike. (Cf. Luna, supra, 113 Cal.App.4th at pp. 398-399.)
DISPOSITION
The judgment is affirmed.
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