Belmares

Factual and Procedural History

After starting to argue and fight with two young men, Edward Belmares (convicted herein as Edward Balmares) hit one on the head with a rock. Two deputy sheriffs who struggled to restrain him pepper-sprayed him, took him to the ground, and secured his legs to his handcuffs before he finally stopped kicking and yelling. A jury found him guilty of assault with a deadly weapon, deterring an executive officer from performing a lawful duty (deterring), and resisting a peace officer in the discharge of an official duty (resisting). (Pen. Code, §§ 245, subd. (a)(1), 69, 148, subd. (a)(1). ) At a bifurcated trial, the jury found two allegations of prior prison terms true. (§§ 667.5, subd. (b), 969b. )

Issues on Appeal

On appeal, Belmares raises two arguments. First, on the premise that resisting is a lesser included offense of deterring, he argues the judgment violates the rule against grounding multiple convictions in necessarily included offenses. (§ 954.) Second, on the premise that he had a constitutional right to a jury trial on the identity of the person in the section 969b packet, he argues the court’s instructing the jury without finding…