People v. McCardell CA2/7

INTRODUCTION

Defendant Donald Ray McCardell appeals from the judgment entered after a jury found him guilty of assault by means of force likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)) and found true the special allegation that he inflicted great bodily injury in committing the offense (§ 12022.7, subd. (a)). In a bifurcated proceeding the trial court found true the allegations that McCardell had suffered one prior serious felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12) and had served one separate prison term for a felony (§ 667.5, subd. (b)).2 The court sentenced McCardell under the three strikes law to an aggregate prison term of 16 years. On appeal, McCardell argues that the trial court committed reversible error in failing to instruct the jury on the lesser included offense of simple assault and in denying his post-verdict motions to represent himself under Faretta v. California (1975) 422 U.S. 806, 835-836 [95 S.Ct. 2525, 45 L.Ed.2d 562]. He also challenges the amount of the restitution fine the court imposed. We conclude that the trial court did not err in instructing the jury, but we reverse the judgment and remand with directions to…