People v. Kirkland CA3

Filed 11/21/13 P. v. Kirkland CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072754

Plaintiff and Respondent, (Super. Ct. No. 12F00215)

v.

DAVID JAMES KIRKLAND,

Defendant and Appellant.

A jury found defendant David Kirkland guilty of assault and battery by means of force likely to cause great bodily injury. He appeals, arguing the trial court erred in failing to instruct on the lesser included offense of simple assault. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND On an evening in early January, Steve Bassett and Jesse Jensen were drinking beer in a local bar. While there, a woman walked in and began arguing with an off-duty bartender. After the woman was asked to leave several times, Bassett and Jensen walked

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her out to the parking lot. There she made a call on her cell phone, yelling that Bassett and Jensen did not “know who they [we]re messing with.” A few minutes later, a man pulled up to the parking lot and got out of a car. At trial, the man was identified as defendant. Bassett and Jensen gave slightly different versions of the events that followed. According to Bassett, a clean-cut man arrived and began talking with the woman. Bassett recalled seeing one of defendant’s facial tattoos out of the corner of his eye before he was hit by something and knocked out. Jensen, on the other hand, never saw the clean-cut man and saw only defendant. Jensen saw defendant walk over to Bassett and argue with Bassett for a brief time. Defendant then hit Bassett in the face and Jensen saw Bassett’s knees buckle and saw him collapse. Bassett is a big, six-feet four-inch military veteran. Defendant has a thin build and came up to around the chin of the six-feet two-inch Jensen but was initially described as being five feet five inches tall. Bassett regained consciousness inside the bar on a pool table. He received a black eye and a cut above his left eye from the one-hit knockout blow. Bassett could tell that he had not simply been hit by a fist because he had “been hit by a fist before. He didn’t hit me with a fist.” As relevant here, defendant was charged with assault by means of force likely to cause great bodily injury (Pen. Code,1 § 245, subd. (a)(4)) and battery resulting in serious bodily injury (§ 243, subd. (d)) for his attack on Bassett. The trial court considered whether to instruct the jury on the lesser included offense of simple assault but declined to issue the instruction. The jury found defendant guilty as charged. After a bench trial,