Opinion
F078929
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS RODRIGUEZ, JR., Defendant and Appellant.
Jenny M. Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F18906292)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. Jenny M. Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jesus Rodriguez, Jr. swung a hay bale hook at Francisco R. through an open car window, hitting Francisco in the lip. A jury convicted defendant of assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)), and defendant admitted five 1-year prior prison term allegations (§ 667.5, subd. (b)). By the time of sentencing, one of the offenses giving rise to a prior prison term allegation had been reclassified as a misdemeanor pursuant to Proposition 47. The court sentenced defendant to an aggregate prison term of eight years, comprised of four years for the assault and four consecutive one-year terms for the four remaining prior prison term enhancements.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends his conviction must be reversed because (1) the evidence was insufficient to establish he used the hay bale hook in a manner likely to cause great bodily injury, (2) the court prejudicially erred in declining to instruct the jury on the lesser included offense of simple assault, (3) the prosecutor committed misconduct in closing argument by misstating the law regarding the definition of a deadly weapon, and (4) defendant was prejudiced by the cumulative effect of these errors. For reasons stated below, we reject these contentions.
Defendant also contends, and the People concede, his one-year prior prison term enhancements must be stricken pursuant to Senate Bill No. 136 (Stats. 2019, ch. 590, § 1 (Senate Bill No. 136)), and the matter remanded for resentencing. We accept the People's concessions on these issues. Accordingly, we will strike the one-year prior prison term enhancements and remand for a resentencing hearing.
In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
In 2013, someone broke into Francisco's auto body shop and stole auto parts and a car. Defendant was apprehended with some of the stolen items and the keys to the stolen car. He subsequently was convicted of receiving stolen property. (§ 496, subd. (a).)
In the years that followed, defendant would drive by Francisco's shop several times each day. On at least 100 such occasions, defendant yelled and cussed at Francisco. Sometimes, Francisco would yell back.
In 2015, Francisco was driving and noticed defendant driving approximately five cars ahead of him. Defendant eventually pulled over, exited his vehicle, and stood in the bike lane with a baseball bat as Francisco drove past.
At approximately 6:20 p.m. on the evening of June 15, 2018, Francisco was outside his shop when defendant drove up with a female passenger in his truck. Defendant exited the truck, grabbed something from the truck bed, and walked toward Francisco, cussing and yelling at him. Francisco was inside a customer's car with the door closed and the window rolled down. When defendant approached to within approximately one foot from the car window, he lifted his arm and swung a hay bale hook toward Francisco. According to Francisco, "[i]t happened so fast." Francisco leaned toward the passenger side of the car and felt the hook hit him in the lip. Defendant then returned to his truck and drove away. Francisco's lip was bleeding, swollen, and painful but did not require medical treatment.
Francisco testified he believed he was hit by the metal "backside" or exterior portion of the hook, right under the pointed tip, rather than by the tip itself. He explained that the "pointy part" had just passed him, and the part that hit him felt smooth. He acknowledged that, shortly after the incident, he told Deputy Sheriff Tyler Hitter that he could not tell what part of the hook hit him.
One of Francisco's employees called law enforcement. Approximately one hour later, while waiting for law enforcement to arrive, Francisco and his employee saw defendant's truck pass by the shop again. They again called law enforcement, who told them to observe which way the car went. They followed the truck until Hitter arrived.
Hitter received the initial call for service at the auto body shop, but was delayed in arriving. He ultimately arrived at another location, where he encountered Francisco and his employee sitting in a vehicle parked approximately 100 yards away from defendant's truck. When Hitter approached the truck, a woman who identified herself as defendant's girlfriend was in the driver's seat; a man who was not defendant was also in the truck. Hitter attempted to locate defendant and ultimately determined defendant had been pulled over in his truck and arrested by local police at approximately 6:26 p.m.
Hitter found two hay bale hooks in the back of defendant's truck, and Francisco identified those hooks as being like the one defendant had used. The hooks were made of metal, weighed between five and ten pounds each and, combined, could lift a hay bale of 1,500 or more pounds.
DISCUSSION
I. Substantial Evidence of Assault with a Deadly Weapon
Defendant contends his conviction for assault with a deadly weapon must be reversed because there was not substantial evidence he used the hay bale hook in a manner likely to cause great bodily injury. He points out that Francisco's injury was minor, the assault did not involve the pointed tip of the hook, and there was no testimony regarding the degree of force used. Accordingly, he contends, the evidence was insufficient for the jury to conclude he used a deadly weapon. For reasons we explain, we find substantial evidence to support the conviction.
A. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense[]" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
B. Analysis
Defendant was convicted of assault with a deadly weapon other than a firearm in violation of section 245, subdivision (a)(1). "'As used in section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury."'" (In re B.M. (2018) 6 Cal.5th 528, 532-533 (In re B.M.), quoting People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Our Supreme Court has determined that some few objects are inherently dangerous or deadly and are therefore considered deadly weapons as a matter of law. (Aguilar, supra, at p. 1029 [recognizing that dirks and blackjacks have been held to be deadly weapons as a matter of law].) For the remaining objects that do not qualify as inherently deadly or dangerous, "the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also '"likely to produce death or great bodily injury."'" (In re B.M., supra, at p. 533.)
In determining whether a defendant's use of a particular object meets this standard, the trier of fact may consider "'the nature of the object, the manner in which it is used, and all other facts relevant to the issue.'" (In re. B.M., supra, 6 Cal.5th at p. 533.) And, while the trier of fact may not speculate as to "how the object could have been used," "it is appropriate in the deadly weapon inquiry to consider what harm could have resulted from the way the object was actually used." (Id. at pp. 534-535.) In other words, "the evidence may show that serious injury was likely, even if it did not come to pass." (Id. at p. 535.) Finally, while a conviction for assault with a deadly weapon does not require proof of injury, "limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." (Ibid.)
We find several cases illustrative of the application of this rule. In In re B.M., our Supreme Court concluded the defendant's use of a butter knife to make several "'downward' 'slicing' motions" at her sister's legs, which were covered with a blanket, was not likely to produce death or great bodily injury, and was therefore insufficient to support a conviction for assault with a deadly weapon. (In re B.M., supra, 6 Cal.5th at pp. 531, 536-537.) In so concluding, the court relied on evidence that the knife was not sharp, was not used on any exposed part of the victim's body and was used with only "moderate pressure." (Id. at p. 536.) The court found it significant that injury was avoided by the victim's use of a blanket to protect herself prior to the onset of the attack: "To be sure, an aggressor should not receive the benefit of a potential victim fortuitously taking a defensive measure or being removed from harm's way once an assault is already underway. But the facts known to the aggressor before the assault, including defensive measures taken by the victim, are relevant to determining whether the aggressor used an object in a manner likely to cause serious injury." (Id. at p. 537.) The court surmised that, on these facts, there was no substantial evidence the use of the knife was likely to cause great bodily injury. (Id. at p. 539.)
In People v. Beasley (2003) 105 Cal.App.4th 1078, 1086-1087 (Beasley), the Court of Appeal considered two separate assaults, one in which the defendant struck the victim's arms and shoulders with a broomstick, and the other in which the defendant struck the victim's shoulder and back with a vacuum cleaner attachment. As to the broomstick, the Court of Appeal found it "conceivable that a sufficiently strong and/or heavy broomstick might be wielded in a manner capable of producing, and likely to produce, great bodily injury," but noted that the conclusory nature of the trial testimony, which omitted details concerning the degree of force used and the composition, weight, and rigidity of the broomstick, deprived the jury of facts necessary to assess the severity of the impact. (Id. at pp. 1087-1088.) Accordingly, the evidence was insufficient to establish the broomstick, as used, was a deadly weapon. (Id. at p. 1088.) As for the vacuum cleaner attachment, the court concluded that "[s]triking an adult's shoulder and back with a hollow plastic instrument is not likely to produce significant or substantial injury." (Ibid.)
On the other hand, courts regularly conclude that the application, or attempted application, of "a sharp object" to "a vulnerable part of the body" is sufficient evidence for a jury to find the defendant used a deadly weapon. (In re B.M., supra, 6 Cal.5th at p. 538 [collecting cases]; People v. Koback (2019) 36 Cal.App.5th 912, 924-925 (Koback) [evidence sufficient where the defendant "'charged,'" "'came at,'" or "'lunged'" at the victim with sharp end of a car key but did not strike him]; In re D.T. (2015) 237 Cal.App.4th 693, 697, 699-701 [use of sharp, pointy pocketknife to poke someone multiple times in the upper back was substantial evidence of use of a deadly weapon]; People v. Page (2004) 123 Cal.App.4th 1466, 1469 (Page) [holding a sharp, pointy pencil to the victim's neck was substantial evidence of use of a deadly weapon]; People v. Simons (1996) 42 Cal.App.4th 1100, 1107 [evidence that the defendant flailed about with a screwdriver was sufficient to demonstrate the screwdriver was capable of being used as a deadly weapon and the defendant intended to use it as such].)
Here, defendant rapidly swung a heavy, pointed, metal hay bale hook at his victim's face from close range and with sufficient force to cause bleeding and swelling. Both the nature of the object and the manner in which it was used suggest great bodily injury was likely. (See In re. B.M., supra, 6 Cal.5th at p. 533.) There is simply no comparison between swinging a metal hook weighing between five and ten pounds at a victim's face, and applying a butter knife with moderate pressure to a victim's legs through a blanket (id. at pp. 531, 536-537), or hitting a victim about the shoulders, arms, and back with a hollow plastic instrument or a broomstick of unknown material (Beasley, supra, 105 Cal.App.4th at pp. 1087-1088), circumstances in which courts have reached contrary conclusions.
Furthermore, it appears great bodily injury was avoided here only because the victim was able to quickly move out of the way. (See In re B.M., supra, 6 Cal.5th at pp. 534-535.) Unlike In re B.M., this is not a case where the lack of injury is attributable to the nature of the object or the manner in which it was used. (See ibid.) Thus, although the actual injury was relatively minor, the harm that could have resulted from swinging the bale hook at the victim's face in the manner described was substantial. We therefore have no difficulty concluding this conduct constitutes substantial evidence the hook was used in a manner that was both capable of producing, and likely to produce, great bodily injury. (See id. at p. 533.)
The evidence indicates the victim fortuitously moved out of the way as defendant began his assault, a circumstance that does not aid defendant. (In re B.M., supra, 6 Cal.5th at p. 537.) This is not a case wherein the victim took defensive measures that were known to defendant before the assault. (Ibid.)
We recognize there is some ambiguity in the evidence as to whether the pointed or rounded part of the hook was aimed at the victim's face. However, Francisco testified he was hit by the "backside" of the hook, and that the "pointy part" had just passed him. There was, therefore, evidence from which the jury could reasonably have deduced that the pointed part of the hook came dangerously close to striking Francisco's face and, on review, we must "review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357.). The evidence, so construed, is sufficient to support a finding that the defendant used a deadly weapon by applying a sharp object to a vulnerable part of Francisco's body. (E.g., In re B.M., supra, 6 Cal.5th at p. 538; Koback, supra, 36 Cal.App.5th at p. 924 [lunging at, but not striking the victim with car key]; Page, supra, 123 Cal.App.4th at p. 1469 [holding pencil to the victim's neck].)
We reject defendant's unsupported contention that the face does not constitute a vulnerable part of the body. (Cf. Beasley, supra, 105 Cal.App.4th at p. 1087 [noting broomstick was not likely to cause great bodily injury, in part because it was not used to strike the victim's face or head]; People v. Saez (2015) 237 Cal.App.4th 1177, 1189 [concluding the victim suffered great bodily injury and describing the head as "an obviously vulnerable area"]; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427 [discussing the requisite intent for the offense of torture (§ 206), and describing the face as "'a particularly vulnerable area'"].)
In any event, we would reach the same conclusion even absent evidence that defendant swung at Francisco's face with the pointed end of the hook. Evidence that defendant swung a five- to ten-pound metal object at Francisco's face from a foot away, and with sufficient force to cause bleeding and swelling, despite Francisco's efforts to avoid injury, is sufficient evidence on which a jury may rest a finding that defendant used a deadly weapon.
Accordingly, we reject defendant's claim of evidentiary insufficiency and conclude substantial evidence supports the judgment.
II. Instruction on Simple Assault as a Lesser Included Offense
Defendant requested an instruction on simple assault as a lesser included offense to the charged offense of assault with a deadly weapon. The court recognized that simple assault is a lesser included offense to assault with a deadly weapon, but refused the requested instruction on the ground there was "insufficient substantial evidence from which a jury could conclude that the lesser but not the greater offense was committed," and that "a reasonable jury [could not] find that the defendant committed only a simple assault and not assault with [a] deadly weapon ...." Defendant contends the trial court prejudicially erred in refusing to instruct the jury on simple assault. As explained below, we conclude the trial court did not err and, in any event, the failure to instruct on simple assault was harmless.
A. Standard of Review
"Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (People v. Gonzalez (2018) 5 Cal.5th 186, 196.) "A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, '"that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted, '"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) "'"The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only "[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of" the lesser offense.'" (People v. Landry (2016) 2 Cal.5th 52, 96, quoting People v. Shockley (2013) 58 Cal.4th 400, 403-404; accord, People v. Simon (2016) 1 Cal.5th 98, 132.) "On appeal, we independently review whether a trial court erroneously failed to instruct on a lesser included offense." (People v. Trujeque (2015) 61 Cal.4th 227, 271; accord, People v. Waidla (2000) 22 Cal.4th 690, 733.)
B. No Error
Simple assault is a lesser included offense of assault with a deadly weapon. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 ["simple assault (§ 240) is a lesser included offense of aggravated assault (§ 245, subd. (a)(1) )"].) A simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The only difference between simple assault and assault with a deadly weapon is that the latter requires proof the defendant used a deadly weapon. (McDaniel, supra, at p. 748.) Thus, an assault with a deadly weapon cannot be committed without necessarily committing a simple assault.
Here, there was no evidence that defendant committed a simple assault on Francisco but did not also assault Francisco with a deadly weapon, i.e., the hay bale hook. The evidence showed that defendant assaulted Francisco by swinging the bale hook at Francisco's face, and by no other means. Defendant's action of willfully and rapidly swinging a five- to ten-pound metal hay bale hook at another person's face at close range, and with sufficient force to cause bleeding and swelling, despite the victim's evasive maneuvers, does not support giving an instruction on simple assault as a lesser included offense, because the jury could not reasonably have found defendant guilty of simple assault, but not assault with a deadly weapon. (See People v. Golde (2008) 163 Cal.App.4th 101, 115-117 (Golde) ["[T]here is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury."].)
Although defense counsel argued in closing that defendant may have punched Francisco rather than hitting him with the hook, there was no evidence to support this suggestion. In any event, defendant does not rely on this theory on appeal.
Defendant again relies on In re B.M. and Beasley to support his claim it was error to deprive the jury of the opportunity to find that his use of the hay bale hook constituted merely simple assault. Defendant's reliance on these cases is misplaced. As explained above, both cases involved a finding that the evidence—in In re B.M., of the use of a butter knife with moderate force against blanketed legs, and in Beasley, the use of a hollow, plastic vacuum attachment and a broomstick of unknown weight and material—was insufficient to support a finding the defendant had used a deadly weapon. (In re B.M., supra, 6 Cal.5th at pp. 536-539; Beasley, supra, 105 Cal.App.4th at pp. 1087-1088.) Here, no reasonable jury could have concluded that the described use of the hay bale hook was either incapable of causing, or unlikely to cause, great bodily injury to Francisco. (Golde, supra, 163 Cal.App.4th at pp. 116-117 [rejecting similar argument based on Beasley]; Page, supra, 123 Cal.App.4th at p. 1473 [holding sharp pencil to the victim's neck and threatening to stab the victim with it if the victim called the police was using the pencil as a deadly weapon as a matter of law, and there was no error in failing to instruct on simple assault because no reasonable jury could have found the defendant guilty of only simple assault but not assault with a deadly weapon].)
Based on the evidence, the jury could not reasonably have found defendant guilty of only simple assault and not assault with a deadly weapon. Accordingly, the trial court did not err in failing to instruct on simple assault as a lesser included offense. (People v. Breverman (1998) 19 Cal. 4th 142, 162 (Breverman).)
C. Harmless Error
Even assuming arguendo that it was error for the trial court to decline to instruct the jury on simple assault as a lesser included offense, we conclude defendant was not prejudiced by this error.
As an initial matter, defendant argues the error is of federal constitutional proportions and, accordingly, prejudice should be measured under the standard of Chapman v. California (1967) 386 U.S.18, 24 [prosecution must show, beyond a reasonable doubt, that the error did not contribute to the verdict] (Chapman). However, our Supreme Court has held that a trial court's erroneous failure to instruct on a lesser included offense in a noncapital case is state law error to be reviewed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836-837 (the defendant must show it is reasonably probable he would have achieved a more favorable result absent the error) (Watson). (People v. Beltran (2013) 56 Cal.4th 935, 955 (Beltran); Breverman, supra, 19 Cal.4th at pp. 177-178.)
Nevertheless, defendant contends we are bound by the United States Supreme Court's decision in Beck v. Alabama (1980) 447 U.S. 625, 637, which held that instructions on a lesser included offense are constitutionally required in capital cases. However, the Supreme Court has not extended Beck to noncapital cases. (See Howell v. Mississippi (2005) 543 U.S. 440, 445 (2005) (per curiam) [asserting that a state rule on lesser included offense instructions "unlike [the constitutional right to a lesser included offense instruction articulated in] Beck ... applies in noncapital cases"]; United States v. Carothers (9th Cir. 2011) 630 F.3d 959, 967 [noting it remained unclear whether the defendant was constitutionally entitled to a lesser included offense instruction in a noncapital case]; United States v. Rivera-Alonzo (9th Cir. 2009) 584 F.3d 829, 834, fn. 3 ["[W]e have not resolved whether there is a Constitutional right to a lesser-included instruction in noncapital cases."].) Until the United States Supreme Court or our Supreme Court holds otherwise, the failure to give a lesser included offense instruction in a noncapital case is, with limited exception discussed below, a matter of state law to be reviewed for prejudice under Watson. (Beltran, supra, 56 Cal.4th at p. 955.)
Defendant also relies on People v. Thomas (2013) 218 Cal.App.4th 630, 646 (Thomas) for the proposition that Chapman applies. Thomas, however, is inapposite. In Thomas, the Court of Appeal addressed a claim of prejudice resulting from instructional error under the Chapman standard after the trial court failed to give a requested instruction on provocation or heat of passion in a prosecution for second degree murder. (Thomas, supra, at pp. 633, 641-642.) The court reasoned that provocation and heat of passion may reduce an intentional, unlawful killing from murder to voluntary manslaughter, because they negate the element of malice. (Id. at p. 643.) Thus, the court concluded, failing to instruct the jury that the element of malice is not present when the defendant kills in the heat of passion amounts to a failure to instruct on the elements of murder. (Ibid.; see People v. Lasko (2000) 23 Cal.4th 101, 113.) Because the jury instructions thus relieved the prosecution "'of the burden of proving beyond a reasonable doubt each element of the charged offense'" the failure to instruct on provocation and heat of passion violated the defendant's due process rights under the federal Constitution, requiring that prejudice arising therefrom be evaluated under Chapman. (Thomas, supra, at p. 644, quoting People v. Flood (1998) 18 Cal.4th 470, 491; accord, People v. Ngo (2014) 225 Cal.App.4th 126, 158, fn. 20 (Ngo); see Lasko, supra, at p. 113; People v. Moye (2009) 47 Cal.4th 537, 564 (dis. opn. of Kennard, J.); Breverman, supra, 19 Cal.4th at pp. 187-195 (dis. opn. of Kennard, J.); People v. Millbrook (2014) 222 Cal.App.4th 1122, 1145-1146.)
Here, defendant does not claim the court's instructional error violated his right to due process by relieving the prosecution of its burden of proving each element of the offense beyond a reasonable doubt. Accordingly, we find defendant's reliance on Thomas unpersuasive in this context. (See Ngo, supra, 225 Cal.App.4th at p. 158, fn. 20.) We are bound by the decisions of our high court (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308-309) and, therefore, we apply Watson to defendant's claim of prejudice (Beltran, supra, 56 Cal.4th at p. 955; Ngo, supra, at p. 158).
Under Watson, "'a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (Beltran, supra, 56 Cal.4th at p. 955.) The test "'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.'" (Id. at p. 956, quoting Breverman, supra, 19 Cal.4th at p. 177.)
Here, even if an instruction on simple assault had been provided, it was not reasonably probable that defendant would have succeeded in convincing a jury he had committed only the lesser offense of simple assault and not assault with a deadly weapon. This was a strong case for the prosecution, and the evidence that defendant attacked Francisco with the hay bale hook was uncontroverted. Francisco testified that he saw defendant approach with the bale hook in his hand, then felt the hook hit him in the lip. Two hay bale hooks were then recovered from defendant's vehicle. Although defense counsel urged the jury to find defendant had not used the hook in a way that was likely to cause great bodily injury or death, the evidence showed that defendant rapidly swung this heavy, pointed, metal object at his victim's face from close range and with sufficient force to cause bleeding and swelling. It is not reasonably probable the verdict would have been more favorable to defendant had the simple assault instruction been given.
III. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by misstating the law. When we consider the challenged statements in context with the whole argument and alongside the given instructions, we find no reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (See People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
A. Additional Factual Background
Defendant raises several claims of prosecutorial misconduct. Specifically, he claims (1) the prosecutor initially neglected to tell the jury the People were required to prove that the object defendant used was a deadly weapon, (2) then failed to tell the jury, in three separate instances, the object must be both capable of and likely to cause great bodily injury, and (3) suggested, in rebuttal closing, that the People were merely required to prove that defendant's conduct could "'potentially'" or "'possibly'" cause great bodily injury or death.
The relevant portions of the prosecutor's argument are as follows:
In arguing that the prosecutor misstated the law, defendant takes the prosecutor's comments out of context. To establish the relevant context, we find it necessary to quote from the prosecutor's argument at length.
"So the defendant is charged with assault with a deadly weapon. This is one of the instructions that the judge read to you. It's the most important instruction because it's what you have to determine whether or not he committed this offense, and the other instructions are to help and assist you in reaching this decision.
"So assault with a deadly weapon requires the People to prove that the defendant did an act with a deadly weapon, that by its nature would directly and probably result in the application of force to a person. The defendant did that act willfully. And when he acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to a person.
"And finally, when the defendant did the act, he had the present ability to apply force with a deadly weapon to a person. Now ID is not an issue here. We have to prove it was the defendant who committed this crime. ID is not an issue. [¶] ... [¶]
"Now, the issue here is going to be whether or not a hay hook is a deadly weapon. Now, a deadly weapon is defined, and you'll get the definition in here. I'm summarizing it for you, but rely on the CALCRIM or the jury instructions. A deadly weapon other than a firearm is any object or instrument, that's any object or instrument, that's used in such a way that is capable of causing death or great bodily injury."
At this point, defense counsel objected that the argument "[m]isstates the instruction." The court responded, "You'll have an opportunity to argue, Counsel, and I've instructed the jury." The prosecutor went on to state:
"You heard testimony from Deputy Hitter that each hook weighed approximately 5 to 10 pounds. It was metal, and I believe he said it was corroded. The victim also testified it was metal. There were sharp tips. You can see the sharp tips, and he was hit in the face with it. The fact is
this is a deadly or dangerous weapon, and it was used in a deadly or dangerous fashion as to cause great bodily injury or death."
The prosecutor continued:
"Again, we're not required to prove the defendant actually touched Francisco or that Francisco suffered great bodily injury. We need only prove that he was capable of causing great bodily injury. Meaning if that hook had hit, or could that hook, if he had hit a certain way cause great bodily injury?
"Now swinging a hook at anybody in close range, even without contact, if he swiped right in front of Francisco's face and never even made contact, that would still be sufficient to prove this charge. The metal hook with a sharp tip could easily result in taking an eye out, slashing a face, hitting an artery, causing a laceration for great bodily injury purposes, and obviously could cause death. However, here, like I said, we did have injury. While fortunately it was minimal, it was a busted lip, but we're still not required to prove that great bodily injury or death actually occurred."
In defendant's closing argument, defense counsel referred the jurors back to the court's instruction regarding the definition of a deadly weapon, stating it was "absolutely critical" the jury apply the "legal meaning" to determine whether the bale hook was capable of causing and likely to cause great bodily injury or death. Defense counsel stated, "[I]f you find that there is no reasonable doubt that the weapon was used in a way that was likely to cause great bodily injury or death, you must vote guilty." However, defense counsel argued there was no proof that the object was used in a way that was likely to cause great bodily injury or death, particularly given the nature of Francisco's injuries.
In rebuttal closing, the prosecutor conceded defense counsel was correct in saying "the issue is whether or not his client, the defendant, hit Francisco in a way that was likely to cause great bodily injury or death. That's the issue." The prosecutor reiterated, "The issue is whether or not a hay bale hook, swinging a hay bale hook at somebody's face is likely to cause great bodily injury or death. And this is all going to be defined for you. Engraining this in your memory if you can write it down, CALCRIM [No.] 875, it's what's going to lead your deliberations."
The prosecutor once again stated that the People did not have to prove that any injury actually occurred, only that defendant striking somebody in the face could "potentially" cause great bodily injury. The prosecutor continued:
"Francisco suffered minor harm. However, [CALCRIM No.] 875 will also tell you we don't have to prove any harm even occurred. All we have to prove, if swinging a 5 to 10-pound hay bale hook at somebody's face, even without making contact, could have possibly resulted in great bodily injury or death. That is it. That is the People's burden."
B. Forfeiture of Claims
The People contend defendant forfeited at least five of his six claims of prosecutorial misconduct because defense counsel's single objection was insufficient to preserve all of the various claims and, in any event, did not specify the misstatement of law or request that the court admonish the jury.
The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for admonition in the trial court. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853 (Daveggio).) However, we will excuse a defendant's failure to object "'if an objection would have been futile' [citation], or if an admonition would not have mitigated the harm caused by the misconduct [citations]." (Ibid.) Additionally, the absence of a request for curative admonition will be excused if the court immediately overrules the objection, leaving defendant no opportunity to make such a request. (Ibid.)
Here, defendant objected to the following statement on the ground it misstated the instruction: "A deadly weapon other than a firearm is any object or instrument, that's any object or instrument, that's used in such a way that is capable of causing death or great bodily injury." The court overruled the objection, leaving no opportunity for defendant to request a curative admonition. We find this objection sufficiently specific to preserve defendant's argument that this statement misstated the law by omitting the requirement that the object also be likely to cause death or great bodily injury. Furthermore, we will assume, for purposes of this analysis, that this objection is sufficient to preserve defendant's challenge to the two additional instances in which the prosecutor made the same omission. (Daveggio, supra, 4 Cal.5th at p. 861 ["claims of futility must generally be tied to the type of objection that would have been futile"].)
However, this objection was not sufficient to preserve defendant's remaining challenges for appeal. Although the court overruled the objection, nothing in the court's ruling indicated it would have overruled objections brought on other grounds. The court stated only, "You'll have an opportunity to argue, Counsel, and I've instructed the jury." This statement is insufficient to suggest additional objections by defense counsel would have been futile. (People v. Powell (2018) 6 Cal.5th 136, 171 [holding the defendant made insufficient showing of futility where the trial court overruled an objection stating, "'this is argument; you can respond to it in your argument'"].)
Nevertheless, there is a degree of commonality among defendant's challenges to the prosecutor's closing argument: all of his challenges involve the prosecutor's alleged misrepresentation of the definition of a "deadly weapon." Thus, although we conclude three of defendant's challenges are forfeited, we nonetheless discuss—and reject—those challenges below as we examine the effect of the prosecutor's comments on the jury in the context of the whole argument.
C. Law Regarding Prosecutorial Misconduct
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.'" (People v. Parson (2008) 44 Cal.4th 332, 359.) "Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) "[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
"A prosecutor's misconduct violates the Fourteenth Amendment to the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct 'that does not render a criminal trial fundamentally unfair' violates California law 'only if it involves "'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (People v. Harrison (2005) 35 Cal.4th 208, 242.) "[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." (People v. Marshall (1996) 13 Cal.4th 799, 831; accord, Centeno, supra, 60 Cal.4th at pp. 666.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Centeno, supra, 60 Cal.4th at p. 667.) The court must consider the challenged statements in the context of the argument as a whole to make its determination. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.) "'[W]hen [a] claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (Daveggio, supra, 4 Cal.5th at p. 854.)
"As a general matter, an appellate court reviews a trial court's ruling on prosecutorial misconduct for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 213.) In the absence of a due process violation, reversal for prosecutorial misconduct is not warranted unless there is a reasonable probability a result more favorable to the defendant would have been reached without the misconduct. (Crew, supra, 31 Cal.4th at p. 839.) "[O]nly misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm." (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
D. Analysis
Defendant argues the prosecutor's statements would have misled the jurors to believe the People were not required to prove defendant had used a deadly weapon, and/or that the jury could find defendant had used a deadly weapon so long as great bodily injury was a possible, rather than likely, result of his conduct. We examine these contentions in the context of the argument as a whole and alongside the jury instructions. (Centeno, supra, 60 Cal.4th at p. 667.)
1. Elements of Offense
First, defendant contends the prosecutor's initial recitation of the elements of assault with a deadly weapon failed to state that the People were required to prove the object defendant used was a deadly weapon. To the contrary, the deadly weapon requirement was one of the first elements mentioned by the prosecutor, who began her recitation of the elements by stating, "So assault with a deadly weapon requires the People to prove that the defendant did an act with a deadly weapon, that by its nature would directly and probably result in the application of force to a person." (Italics added.) The prosecutor then informed the jury that the question of whether the hay bale hook constituted a deadly weapon was "the issue" in the case, and referred the jurors back to the jury instructions for the definition of "deadly weapon." We find no prosecutorial error or misstatement of law. Nothing in the prosecutor's comments would have led the jurors to believe the People were not required to prove that defendant used a deadly weapon in the assault.
In this regard, the argument closely tracked the jury instruction on assault with a deadly weapon, which defines the offense in the same manner. (CALCRIM No. 875.) There is no dispute that the court properly instructed the jury on the elements of the offense.
Defendant's claim of prosecutorial error on this basis fails.
2. Omission of "Likely to Cause Death or Great Bodily Injury"
Second, defendant challenges three instances in which he claims the prosecutor addressed the definition of "deadly weapon" in such a way as to omit the requirement that the object be likely to cause death or great bodily injury. In this first instance, the prosecutor stated that a "deadly weapon other than a firearm is any object or instrument, ... that's used in such a way that is capable of causing death or great bodily injury." In the second instance, the prosecutor stated, "The fact is this is a deadly or dangerous weapon, and it was used in a deadly or dangerous fashion as to cause great bodily injury or death." In the third instance, the prosecutor stated the People were not required to prove defendant actually caused great bodily injury, only "that he was capable of causing great bodily injury. Meaning if that hook had hit, or could that hook, if he had hit a certain way cause great bodily injury?"
As an initial matter, the challenged statements are not misstatements of law. As stated above, a "'"deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury."'" (In re B.M., supra, 6 Cal.5th at pp. 532-533.) It is therefore accurate for the prosecutor to state that a "deadly weapon" is an object capable of causing great bodily injury. The question therefore becomes whether the prosecutor's omission of the second component of the definition—that the object also be likely to produce great bodily injury—was so misleading as to create a reasonable likelihood the jury applied an erroneous definition of "deadly weapon" in determining defendant's guilt. (See Centeno, supra, 60 Cal.4th at p. 667.) We find no such likelihood.
Significantly, the jury was properly instructed on the definition of "deadly weapon." The court also instructed the jury, "You must follow the law as I explain it to you, even if you disagree with it. [¶] If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The prosecutor informed the jury that the term "deadly weapon" was defined in their jury instructions, and that they should rely on that definition because she was merely "summarizing it." Defense counsel likewise referred the jury back to the instructions, stating it was "absolutely critical" the jury apply the "legal meaning" to determine whether the bale hook was both capable of causing and likely to cause great bodily injury or death. The prosecutor then conceded that defense counsel was correct in saying "the issue" in the case was whether defendant "hit Francisco in a way that was likely to cause great bodily injury or death." Notably, all of the prosecutor's omissions occurred prior to this concession. The prosecutor also reiterated, "[T]his is all going to be defined for you[,]" and referred the jurors to the specific jury instruction that would "lead [their] deliberations."
In sum, the jury was repeatedly referred to the definition of "deadly weapon" contained in the instructions and urged to apply that definition, including the requirement that defendant's use of the object be likely to cause great bodily injury or death. In this context, we find no reasonable likelihood that the jurors erroneously understood they could convict defendant without finding his use of the hay bale hook was likely to cause great bodily injury.
3. Potential or Possible Injury
Finally, defendant challenges two occasions in which he contends the prosecutor suggested the jury could convict if they found defendant's use of the bale hook could potentially or possibly cause great bodily injury or death. In the first instance, the prosecutor argued the People were not required to prove great bodily injury occurred, but rather that "striking somebody in the face could potentially cause great bodily injury if striking somebody in the face with a hay bale hook is a deadly or dangerous weapon." The second instance involved the following statement:
"[W]e don't have to prove any harm even occurred. All we have to prove, if swinging a 5 to 10-pound hay bale hook at somebody's face, even without making contact, could have possibly resulted in great bodily injury or death. That is it. That is the People's burden." (Italics added.)
These statements, taken out of context, do seem to suggest that the prosecutor's sole burden was to prove that defendant's use of the bale hook was capable of causing great bodily injury. In context, however, it is apparent the prosecutor was responding to defense counsel's argument that the victim's relatively minor injuries constituted an absence of proof that the object was used in a way likely to cause great bodily injury. Furthermore, as explained in detail above, the jury was repeatedly referred to the complete definition of "deadly weapon" contained in the instructions and urged to apply that definition. The prosecutor acknowledged that the question of whether defendant's use of the bale hook was likely to cause great bodily injury or death was "the issue" in the case. In this context, we find no reasonable likelihood that the jury erroneously understood it could convict defendant based solely on a finding that his use of the hay bale hook could potentially or possibly cause great bodily injury or death.
For these reasons, we reject defendant's claim of prosecutorial misconduct.
IV. Cumulative Error
Defendant also claims cumulative error. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having rejected defendant's individual claims of error, his claim of cumulative error necessarily fails. (People v. Williams (2013) 56 Cal.4th 165, 201, disapproved on another ground by People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9; Sedillo, supra, at p. 1068.)
V. Senate Bill No. 136
As previously set forth, the trial court found true that defendant suffered four prior felony convictions for which he served a prison term, and it imposed four 1-year sentencing enhancements. (§ 667.5, former subd. (b).) On appeal, defendant requests that the prior prison term enhancements be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020.
Pursuant to section 667.5, subdivision (a), courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant where the prior offense and the current offense were both violent felonies as defined in subdivision (c) of section 667.5. For other felonies, section 667.5, former subdivision (b), imposed an additional one-year term for each prior, separate prison term or county jail felony term, except under specified circumstances. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600.) The parties agree that Senate Bill No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5, subdivision (b), applies in this case.
Defendant's four prior prison terms arose out of convictions for grand theft (§ 487, subd. (a)), receiving stolen property (§ 496, subd. (a)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), possession of a controlled substance for sale (Health & Saf. Code, § 11378) and theft and unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). None of these offenses are qualifying offenses under section 667.5, subdivision (b), as amended.
We accept the People's concession that defendant's one-year prior prison term enhancements must be stricken. Additionally, although defendant was otherwise sentenced to the maximum possible sentence (see People v. Buycks (2018) 5 Cal.5th 857, 893 [where the stricken sentence does not depend on the exercise of the trial court's sentencing discretion, and the court otherwise imposed the maximum sentence, resentencing is unnecessary]), the parties agree the matter should be remanded for the trial court to exercise its discretion in resentencing defendant. We will accept the People's concession on both points.
We will strike the one-year sentencing enhancements and remand for a resentencing hearing.
DISPOSITION
Defendant's four prior prison term enhancements (§ 667.5, subd. (b)) are stricken and the matter is remanded for a resentencing hearing. Following the hearing, the trial court is directed to prepare an amended abstract of judgment, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MEEHAN, J. WE CONCUR: LEVY, Acting P.J. FRANSON, J.