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Dual Assault Convictions Violate Section 954

California v. Waxlax Docket: E074347 (Fourth Appellate District), Opinion Date: December 9, 2021. During an altercation outside a bar after last call, defendant-appellant Charles Waxlax stabbed Erik Kimbler in the back with a military-grade knife. Kimbler suffered serious injuries but survived. At trial, the jury rejected Waxlax’s claim of self-defense and convicted him of the four crimes the prosecution had charged him with: attempted murder, assault with a deadly weapon, assault with force likely to produce great bodily injury, and attempting to dissuade a witness from reporting a crime. Defendant was sentenced 11 years in prison, consisting of nine years for the attempted murder conviction and two years for the dissuading conviction. The judge imposed, but stayed under Penal Code section 654, three-year sentences on the two assault convictions. On appeal, Defendant argued the omission of three self-defense related jury instructions required reversal of his murder and assault convictions: (1) an instruction on the doctrine of transferred self-defense; (2) CALCRIM No. 3470, which defined self-defense for all nonhomicide offenses, and (3) a pinpoint instruction that his specific fear of imminent danger arose from his belief he was being robbed. Defendant also argued his dual assault convictions at the very least violated Penal Code section 954 because force-likely assault and assault with a deadly weapon were different statements of the same offense and his charges were based on the same conduct - his single act of stabbing Kimbler. The Court of Appeal found Defendant's claims of instructional error meritless, but agreed his dual assault convictions violated section 954. The Court therefore vacated the force-likely assault conviction in count 2 and struck the fees associated with that count. The judgment was affirmed in all other respects. #954 #dualusefacts #assaultconviction

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