California Court of Appeal Nov 6, 2014 No. E059261Unpublished
Filed 11/6/14 P. v. Hinojosa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E059261
v. (Super.Ct.No. RIF1203474)
SACRAMENTO SANDOVAL OPINION HINOJOSA,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.
Affirmed.
Paul Stubb Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, and
Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
On May 20, 2013, a second amended information charged defendant and appellant
with assault with force likely to produce great bodily injury under Penal Code1 section
245, subdivision (a)(4) (count 1); and making a criminal threat under section 422 (count
instructions on lesser included offenses if there is evidence that, if accepted by the trier of
fact, would absolve the defendant of guilt of the greater offense but not of the lesser.”
(Id. at p. 745.)
“To justify a lesser included offense instruction, the evidence supporting the
instruction must be substantial — that is, it must be evidence from which a jury
composed of reasonable persons could conclude that the facts underlying the particular
instruction exist.” (Blair, supra, 36 Cal.4th at p. 745, italics added.) Stated differently,
“substantial evidence” in this context is evidence from which a jury composed of
reasonable persons could conclude the defendant committed the lesser offense but not the
greater. (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Moye
(2009) 47 Cal.4th 537, 556 [“‘In deciding whether evidence is “substantial” in this
context, a court determines only its bare legal sufficiency, not its weight.’”].) “[T]he
existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser
included offense . . . .” (Breverman, at p. 162, original italics; see also Moye, at p. 553.)
Misdemeanor assault under section 240 is a lesser included offense of assault with
force likely to produce great bodily injury under section 245, subdivision (a)(4). (People
v. McDaniel (2008) 159 Cal.App.4th 736, 747-748, citing People v. Yeats (1977) 66
Cal.App.3d 874, 879.) Misdemeanor assault, the lesser offense, is “an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of another.” (§
240.) Assault with force likely to produce great bodily injury, the greater offense, is an
assault executed with force capable of causing “significant or substantial injury.”
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(People v. Brown (2012) 210 Cal.App.4th 1, 7.) For purposes of the greater offense, it is
immaterial “whether the victim in fact suffers any harm.” (People Aguilar (1997) 16
Cal.4th 1023, 1028.) Physical injuries, however, are “highly probative” of the amount of
force used. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.)
In this case, the court did not instruct the jury on the elements of simple assault,
and the jury convicted defendant of assault with force likely to produce great bodily
injury. Thus, the question presented by defendant’s instructional error claim is whether
there is substantial evidence from which a reasonable jury could find he committed only a
simple assault and not an assault by means of force likely to produce great bodily injury.
If the trial record contains no such evidence, the court had no duty to sua sponte instruct
the jury on the elements of simple assault as a lesser included offense of aggravated
assault. (See Blair, supra, 36 Cal.4th at pp. 744-745.)
It is well-established that the use of hands or fists may support a conviction of
assault by means of force likely to produce great bodily injury. (People v. Aguilar,
supra, 16 Cal.4th at p. 1028 & cases cited therein.) Whether such force “would be likely
to cause great bodily injury is to be determined by the force of the impact, the manner in
which it was used and the circumstances under which the force was applied.” (McDaniel,
supra, 159 Cal.App.4th at pp. 748-749, citing People v. Kinman (1955) 134 Cal.App.2d
419, 422.) Although not conclusive, the results of an assault are highly probative of the
amount of force used. (McDaniel, at p. 748, citing People v. Muir (1966) 244
Cal.App.2d 598, 604.)
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Here, an instruction on simple assault was not warranted. The court had no duty
to give such an instruction sua sponte because there is no substantial evidence from
which a jury composed of reasonable persons could conclude that the force defendant
used in assaulting the victim was less than force likely to produce great bodily injury.
Defendant grabbed the victim’s neck, pushed her head backwards against her seat, and
strangled her until she could not breathe. Defendant held the victim in this position for a
“long time,” applying “a lot of pressure” on her throat and preventing her from calling for
help. As defendant held the victim against the seat, he also stabbed the victim multiple
times in the shoulder with a pen, tearing her blouse and breaking the skin where the pen
contacted her body. The assault left visible abrasions and red marks around the victim’s
neck and throat, as well as several puncture wounds on her shoulder and a large bruise in
the same area that lasted several months. The victim stated that it felt as if victim could
have killed her with the amount of force he used to strangle her.
Notwithstanding the evidence, defendant argues that “there was substantial
evidence from which a reasonable jury could have concluded that [defendant’s] acts were
unlikely to produce great bodily injury.” In support, defendant points to the victim’s
testimony that defendant “used one hand to squeeze her neck and poked her with a pen.”
Moreover, defendant points to the testimony of two officers to challenge the victim’s
credibility about the extent of her injuries caused by defendant. As stated above, a trial
court must instruct the jury sua sponte on any lesser included offenses supported by
substantial evidence. (People v. Parson (2008) 44 Cal.4th 332, 348-349.) In this context,
substantial evidence is evidence from which a reasonable jury could conclude that “‘the
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lesser offense, but not the greater, was committed.’” (People v. Avila, supra, 46 Cal.4th
at p. 705, quoting People v. Cruz (2008) 44 Cal.4th 636, 664.) In applying this standard,
however, appellate courts determine only the “bare legal sufficiency” of the evidence, not
its weight. (Moye, supra, 47 Cal.4th at p. 556.) Moreover, appellate courts should not
dismiss testimony based on its own independent determinations of witness credibility.
(People v. Wyatt (2012) 55 Cal.4th 694, 698, citing Breverman, supra, 19 Cal.4th at p.
162.)
Based on the evidence provided above, we find that the evidence overwhelmingly
shows that defendant forcefully grabbed the victim’s neck, pushed her head back against
the car seat and strangled her to the point where she could not breathe. The victim
testified, “It felt terrible. I felt like that he could have killed me there. I couldn’t
breathe[,]” and “I wasn’t able to talk.” Given the nature of the attack on the victim, no
reasonable juror could find that the force defendant used on the victim was less than force
likely to produce great bodily injury, and thus no reasonable jury could find that
defendant committed only a simple assault and not an aggravated assault.
For the foregoing reasons, we conclude the court did not err by failing to sua
sponte give an instruction on the elements of simple assault as a lesser included offense
of assault by means likely to produce great bodily injury.
Assuming arguendo that it was error for the court to fail sua sponte to instruct the
jury on the lesser included offense of simple assault, the People urge us to find that such
error was harmless under the Watson test for prejudice (Watson, supra, 46 Cal.2d at p.
836), which the California Supreme Court made applicable to instructional errors of this
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sort in noncapital cases in Breverman, supra, 19 Cal.4th at pages 177-178. (See Moye,
supra, 47 Cal.4th at p. 555.)
Under the Watson test, an error in failing sua sponte to instruct on a lesser
included offense requires reversal of the conviction for the greater offense “if, ‘after an
examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably
probable’ the defendant would have obtained a more favorable outcome had the error not
occurred.” (Breverman, supra, 19 Cal.4th at p. 178.) Probability under Watson “does not
mean more likely than not, but merely a reasonable chance, more than an abstract
possibility.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.)
Breverman explained that appellate review under Watson “focuses not on what a
reasonable jury could do, but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an appellate court may consider,
among other things, whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.” (Breverman, supra, 19 Cal.4th at p. 177, original italics.)
Even if the court erred by failing sua sponte to instruct on the lesser included
offenses of simple assault, any such error was harmless under the Watson test as it is not
reasonably probable (i.e., there is not a reasonable chance) defendant would have
obtained a more favorable outcome had the jury been so instructed. (Breverman, supra,
19 Cal.4th at p. 178; Ghilotti, supra, 27 Cal.4th at p. 918.) We have already concluded
that in light of the overwhelming evidence regarding the manner in which defendant
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assaulted the victim, no reasonable juror could find that the force defendant used on her
was less than force likely to produce great bodily injury.
After reviewing the entire cause, including the evidence, we also conclude it is not
reasonably probable that defendant would have obtained a more favorable result if the
court sua sponte had instructed the jury on the elements of simple assault as a lesser
included offense of assault by means likely to produce great bodily injury. The evidence
supporting defendant’s conviction for aggravated assault is strong, and the evidence
supporting a different outcome is so weak—to the point of being virtually nonexistent—
that there is no reasonable probability the instructional error of which defendant
complains affected the result.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not err in failing to sua sponte instruct the jury on simple assault as a lesser included offense because the evidence of the defendant's violent conduct was so overwhelming that no reasonable jury could have found him guilty of only the lesser offense. Furthermore, any potential instructional error was harmless under the Watson standard.
Issues
Whether the trial court erred by failing to sua sponte instruct the jury on the lesser included offense of simple assault.
Whether there was substantial evidence to support a conviction for simple assault but not for assault with force likely to produce great bodily injury.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude there is no substantial evidence from which a jury composed of reasonable persons could find that defendant was guilty of the lesser included offense of simple assault but not guilty of the corresponding greater offense”
“no reasonable juror could find that the force defendant used on the victim was less than force likely to produce great bodily injury”
“it is not reasonably probable that defendant would have obtained a more favorable result if the court sua sponte had instructed the jury on the elements of simple assault”