People v. Michaux CA4/2

• Court: California Court of Appeal
• Decided: March 24, 2025
• Docket: E083605
• Status: Unpublished

Opinion

Filed 3/24/25 P. v. Michaux CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E083605

v. (Super.Ct.No. INF2301748)

MICHAEL DEFRAN MICHAUX II, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed in part; reversed in part with directions.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and James

M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

1 A jury convicted defendant and appellant Michael Defran Michaux II of an assault

and a battery on his girlfriend. He argues, and the People concede, his conviction of

assault must be reversed because it is a necessarily included offense of battery. (Pen.

Code, § 954, unlabeled statutory citations refer to this code.) We agree.

I. PROCEDURAL BACKGROUND AND FACTS

Defendant was involved in a romantic relationship with the victim, living with her

and her three children. On September 19, 2023, the victim got off work at 8:00 a.m. and

went to a dental appointment. Defendant repeatedly texted her, asking why she was not

home and where she was. He accused her of “cheating” and stated, “he would fuck [her]

up.” She did not respond because he seemed upset, and “he will get more upset and get

aggressive.”

When the victim returned home, defendant was sleeping in her bedroom and her

suitcase and empty trash bags were on the floor in front of the bed. She noticed a strong

smell of alcohol or drugs. She was concerned because defendant would get “really

aggressive” when under the influence, and he had previously threatened to kill her, put

her in a suitcase, and throw her off a mountain. She left the house to meet a friend for

breakfast and a movie. While watching the movie, defendant texted her threatening

messages and repeatedly called her; she did not answer.

Subsequently, when the victim returned home with her son, defendant stared at

her, closed the blinds on the sliding door, and told her she was going to tell him where

she had been. She was sitting on the couch and her son was in the dining room.

Defendant sat next to her and slapped her face, knocking off her glasses. The victim

2 stood up, and defendant grabbed her by her neck, squeezed it, and said, “I’m not going to

feel sorry for you.” She was scared because her son was watching and defendant’s earlier

texts stated he was going to “fuck” her up. When she started to cry, he let go.

The victim grabbed her son and left. While inside her car, she called the police.

She drove away as defendant came out of the house and walked toward her car. The

victim went to her son’s school, parked the car, and spoke with law enforcement.

Defendant continued to send threatening text messages.

Defendant was arrested and charged with willful and unlawful infliction of

corporal injury resulting in a traumatic condition upon the victim, a cohabitant (§ 273.5,

subd. (f)(2), count 1), assault by means of force likely to produce great bodily injury

(§ 245, subd. (a)(4), count 2), making criminal threats (§ 422, count 3), stalking (§ 646.9,

subd. (a), count 4), misdemeanor violation of a protective order (§ 166, subd. (c)(1),

count 5), and misdemeanor child endangerment (273a, subd. (b), count 6). It was further

alleged defendant suffered a prior strike for manslaughter (§§ 192, subd. (a), 667,

subds. (c) & (e)(l), 1170.12, subd. (c)(l)) and was subject to the following aggravating

factors: being on probation or parole at the time he committed these offenses (Cal. Rules

of Court, rule 4.421(b)(4)) and serving a prior prison term (Cal. Rules of Court,

rule 4.421(b)(3)).

3 The jury convicted defendant of the lesser included offense of simple battery

(§ 243, subd. (e)(1), count 1), the lesser included offense of simple assault (§ 240,

count 2), making a criminal threat, stalking, and violating a protective order.1 Separately,

the trial court found the strike prior to be true. On March 11, 2024, defendant was

sentenced to six years in state prison, comprised of a middle term of three years on

count 4 (stalking), doubled to six years for the prior strike, and 180 days concurrent on

each of counts 1 (battery), 2 (assault), and 5 (violation of protective order); count 3

(making criminal threats) was stayed pursuant to section 654.

II. DISCUSSION

Defendant contends that simple assault is a lesser included offense of simple

battery, meaning he could not be convicted of both crimes. The People agree. The

conviction in count 2 should be reversed.

“‘While section 654 prohibits multiple punishment, it is generally permissible to

convict a defendant of multiple charges arising from a single act or course of conduct.

[Citations.] However, a “judicially created exception to this rule prohibits multiple

convictions based on necessarily included offenses. [Citations.]” [Citation.]’ [Citation.]

[¶] ‘In deciding whether multiple conviction is proper, a court should consider only the

statutory elements.’ [Citation.] ‘Under the elements test, if the statutory elements of the

greater offense include all of the statutory elements of the lesser offense, the latter is

necessarily included in the former.’ [Citation.] In other words, ‘“[i]f a crime cannot be

1 The trial court dismissed the charge of misdemeanor child endangerment pursuant to the defense motion under section 1118.1.

4 committed without also necessarily committing a lesser offense, the latter is a lesser

included offense within the former.”’ [Citation.]” (People v. Delgado (2017) 2 Cal.5th

544, 570; see People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Reed (2006)

38 Cal.4th 1224, 1227-1229.)

Both parties acknowledge that simple assault is a lesser included offense of

battery. “Every completed battery includes an assault, but if the assailant does not go

beyond the attempted use of force or violence, then assault has been committed without

battery. It follows, therefore, that while simple assault is an offense included within

battery, battery is not included within assault.” (People v. Yeats (1977) 66 Cal.App.3d

874, 878.) Because simple assault is a lesser included offense of battery, defendant’s

conviction on count 2 must be reversed. (People v. Milward (2011) 52 Cal.4th 580, 589

[“The law prohibits simultaneous convictions for both a greater offense and a lesser

offense necessarily included within it, when based on the same conduct.”]; People v.

Ortega, supra, 19 Cal.4th at p. 692 [“[a] defendant who commits a battery may not be

convicted of both battery and assault” against the same victim]; People v. Sanders (2012)

55 Cal.4th 731, 736 [“When a defendant is found guilty of both a greater and a

necessarily lesser included offense arising out of the same act or course of conduct . . .

the conviction of the lesser offense must be reversed.”].)

5 III. DISPOSITION

We reverse the judgment of conviction as to count 2 (simple assault). The trial

court is directed to prepare an amended abstract of judgment and to forward a certified

copy to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

FIELDS

J. RAPHAEL J.