Mullendore
People v. Mullendore
Opinion
Opinion
Haller, J.
Sean Rhett Mullendore appeals from a judgment convicting him of the felony offense of throwing a substance at a vehicle (Veh. Code, § 23110, subd. (b)) (hereafter, section 23110(b)) and the misdemeanor offenses of assault and vandalism. He argues the section 23110(b) conviction must be reversed because the trial court failed to instruct the jury on the lesser included misdemeanor offense defined in Vehicle Code section 23110, subdivision (a) (hereafter, section 23110(a)). We agree.
Defendant also asserts his assault and vandalism convictions must be reversed because the court (1) declined his request to instruct the jury on the defense of accident and (2) refused to admit his proffered evidence from an accident reconstruction expert. We find no reversible error as to these claims and affirm the misdemeanor convictions.
We reverse defendant’s felony conviction for violating section 23110(b). We also reverse defendant’s 32-month prison sentence because his section 23110(b) conviction formed the basis for this sentence, and we remand the matter to the superior court for further proceedings.