Brucker

Defendant Gordon Douglas Brucker was convicted of assault with a deadly weapon by force likely to produce great bodily injury (count I, Pen. Code, § 245, subd. (a)), and battery with serious bodily injury (count II, §§ 242, 243, subd. (d)). A special allegation of great bodily injury during the commission of the assault offense (§ 12022.7) was found to be not true. The jury was unable to reach a verdict on the charge of felony hit and run driving with injury (count III, Veh. Code, § 20001). Following a jury trial waiver, the court found defendant had been convicted of a prior felony within the meaning of section 667.5 (voluntary manslaughter under § 192, subd. 1) for which he had served a separate term of imprisonment.

Defendant was sentenced to state prison for the upper term of four years on count II (battery) with the sentence for count I (assault) stayed pending service of the former. The court stayed the enhancement sentence pursuant to section 667.5, subdivision (a), on the prior conviction as well. This appeal followed.

Defendant argues his conviction should be reversed because the trial court committed prejudicial error in failing to instruct the jury sua…