People v. Chavez CA2/2

Filed 5/22/23 P. v. Chavez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B322454

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA129793) v.

JOSE MANUEL CHAVEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Victor D. Martinez, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Jose Manuel Chavez appeals the judgment entered following a jury trial in which he was convicted as charged on one count of assault with a deadly weapon in violation of Penal Code1 section 245, subdivision (a)(1). Appellant admitted a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and the trial court sentenced him to two years, doubled to four years for the strike. Appellant contends the trial court’s refusal to instruct the jury on the lesser included offense of simple assault requires reversal. We disagree and affirm. FACTUAL BACKGROUND Around 3:00 p.m. on February 15, 2022, appellant entered a CVS store in Pomona and began walking through the aisles removing items from the shelves. Jessar Lanuza, a CVS store manager, had seen appellant in the store on more than 10 prior occasions. Appellant was often aggressive and sometimes engaged in shoplifting; Lanuza described him as “a presence in the store” whose loitering made the “staff and customers uncomfortable.” Lanuza had previously asked appellant to leave and made it clear that he was not welcome in the store. Upon learning that appellant was in the store on this occasion, Lanuza approached him and said, “ ‘Hey, what are you doing here?’ ” Appellant aggressively replied, “ ‘Leave me alone. Get away.’ ” Feeling it was not safe to be around appellant, Lanuza went to the office to call the police. Carlos Alvarado was a shift supervisor at CVS. He had seen appellant in the store a “handful of times.” Appellant