People v. Ashley CA1/4

Filed 3/11/25 P. v. Ashley CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A172264, E082372 v. DENARD ASHLEY, (San Bernardino County Super. Ct. No. FSB23001475) Defendant and Appellant.

Denard Ashley was charged with, among other offenses, assault with a deadly weapon on one of the victims in this case. (Pen. Code, § 245, subd. (a)(1) (section 245(a)(1)).) At the close of the People’s case, Ashley moved for an acquittal on this count, arguing the evidence was insufficient to establish the elements of the offense. The trial court granted the motion in part and, without objection from Ashley, modified the charge into one for assault with force likely to produce great bodily injury (hereafter force-likely assault). (Pen. Code,1 § 245, subd. (a)(4) (section 245(a)(4)).) Ashley now contends this was error because force- likely assault under section 245(a)(4) is not a lesser included offense of assault with a deadly weapon under section 245(a)(1).

1 Undesignated statutory citations are to the Penal Code.

1

We conclude Ashley forfeited this argument by failing to object in the trial court. We further reject Ashley’s backup ineffective assistance of counsel argument because the record in this direct appeal does not show that his counsel had no rational tactical reason for failing to object. We will therefore affirm the judgment. BACKGROUND In April 2023, Ashley was living in his car in Jane Doe’s driveway. Living in the house with Doe were two of her sons, Tr. and Ty., ages 16 and 18, respectively. Doe and Ashley argued one night, and Doe told Ashley to leave. The next morning, Doe was sitting in the living room with Tr. and her grandchildren when Ashley came into the house very upset. Ashley called Doe a “bitch” and pushed her on the couch or slapped her hands. This upset Tr., so he pushed Ashley. Tr. squared up and prepared to fight Ashley. Ashley said, “Do you want to die today?” Ashley was wearing a cross-body satchel or bag, and Tr. assumed Ashley had a weapon in it. Tr. went to the hallway and got a broom. Tr. saw Ty. in the hallway and said that Ashley was trying to kill him and had hit Doe. Ty. looked up and saw Ashley charging in his direction, with Doe in between them. Ashley tackled or pushed Doe into the doorway of the restroom off the hallway. Doe fell to the floor, and Ashley got on top of her. Ty. began punching Ashley. Tr. started swinging the broom to help Ty. Ashley pulled a four- to five-inch knife out of his bag and swiped up at Ty.’s throat, cutting him on the neck. Ashley got