People v. Mojarro CA5

INTRODUCTION

On December 12, 2019, defendant Phillip Michael Mojarro hit Brian W. 1 at least three times with an aluminum bat while Brian was sleeping. As a result of the attack, Brian suffered face and wrist fractures along with a concussion, resulting in an eight-day hospital stay. Defendant was subsequently convicted by a jury of assault with a deadly weapon and assault likely to produce great bodily injury, both with great bodily injury enhancements. He was sentenced to a total term of six years. On appeal, defendant contends: (1) the crimes of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))2 and assault likely to cause great bodily injury (id., subd. (a)(4)) are two statements of the same offense and (2) count III (id., subd. (a)(4)) must be vacated because both offenses were based on a single course of conduct in violation of section 954. Based on our Supreme Court’s recent holding in People v. Aguayo (Aug. 22, 2022, S254554) ___ Cal.5th ___ [2022 Cal. LEXIS 5013] (Aguayo), which concluded the crimes of assault with a deadly weapon and assault likely to cause great bodily injury are two statements of the same offense, we vacate defendant’s conviction as to…