Opinion
D072969
10-22-2018
THE PEOPLE, Plaintiff and Respondent, v. RODRIGO FERNANDEZ, Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS280811) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed with instructions. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged defendant Rodrigo Fernandez with assault with a deadly weapon other than a firearm against victims Luis L. and Carlos L. (Pen. Code, § 245, subd. (a)(1), counts 1 and 2, respectively). The jury convicted defendant on count 1 of assault with a deadly weapon, and of the lesser included offense of simple assault on count 2, a misdemeanor (§ 240). Defendant was granted two years' felony probation and was ordered to pay various fees and fines.
Unless noted otherwise, all further statutory references are to the Penal Code.
On appeal, defendant only challenges his conviction on count 1, arguing CALCRIM No. 875 allegedly misstates the law of assault with a deadly weapon when, as in the instant case, the weapon at issue—a baseball bat—is not "inherently deadly." Defendant also challenges the imposition of an $820 fine. As we explain, because the statutory basis of the $820 fine is not clear, we remand for that limited purpose only. In all other respects, we affirm defendant's judgment of conviction.
FACTUAL OVERVIEW
We view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Portions of the factual and procedural history related to the contentions raised by defendant are discussed post.
On July 21, 2015, a fight involving about 15 males broke out at about 9:40 p.m. in front of a residence located on 18th Street in San Diego. The fight, a portion of which was videoed by cellphone and played for the jury, stemmed from an incident that took place a few days earlier between minor Oscar G. and Alejandro Y. while they were driving back into the United States from Tijuana, Mexico.
Abraham Y., who also had gone to Mexico a few days before July 21 with his brother Alejandro, knew Oscar and defendant from school. Abraham had unexpectedly "r[u]n into" Oscar in Mexico. As they all—including Oscar—were approaching the border in a car being driven by Alejandro, Abraham exited the car and walked across. At some point, there was an altercation between Oscar and Alejandro, which Abraham did not witness.
Later that same day, Oscar and defendant went to Alejandro's home looking to fight Alejandro. When Andres Y., the brother of Alejandro and Abraham, lied and told Oscar and defendant that Alejandro was not home, defendant told Andres that they were "going to pay him [i.e., Alejandro] back" and "get even." Before leaving, the two men used a metal pipe (as described by Abraham's mother) or a bat (as described by Andres) to break the window of Abraham's mother's car.
On the day of the incident, Abraham was at the beach with friends when he received several phone calls both from Oscar and defendant. At one point, Abraham answered and spoke to defendant, who informed Abraham they were then outside of Abraham's home, looking for Alejandro. When Abraham informed defendant he was at the beach and he did not know Alejandro's whereabouts, defendant threatened to drag Abraham and Alejandro's mother "out of the house" "by her hair" if Abraham and Alejandro did not return home. Abraham immediately called his mother, told her to lockup the home, and then drove home with his brother Andres.
On arrival, Abraham saw his mother speaking with a police officer. Also, at the home was Alejandro and their cousin, victim Luis L., whom Abraham had called after defendant's threat, and victim Carlos L., a neighbor, among others. After the officer left, the men remained outside talking. About five minutes later, defendant, defendant's uncle, who was holding a baton, codefendant Abdiel Suarez, Oscar, and other males came to the residence, looking for Alejandro. The group, including defendant, appeared angry.
Suarez was also charged in the information. He is not a party to this appeal. --------
Abraham's mother saw one of the men in the group carrying a knife and others in the group carrying about three "thick and heavy" "metal tubes" or "pipes" and also a "bat." Abraham's mother insisted Alejandro and Andres go inside the home. When Abraham informed members of defendant's group that Alejandro was inside and would not be coming out, the two groups began to argue, and then fight, after a member in defendant's group threw a beer can at Abraham.
As the two groups fought for an estimated five minutes, Abraham, while himself in a fist fight with an unknown male, saw defendant holding a bat, which was later confirmed by cell phone video. Abraham next saw defendant strike victim Luis in the back with the bat. While looking out the window from the second floor of her home, Abraham's mother also saw defendant strike Luis with the bat. Luis, however, did not see who struck him because he was not facing his attacker.
After being struck with the bat, Luis fell to the ground. As a result of the blow, Luis experienced pain and numbness in his back for about a month, making it difficult to work. Luis during the fight also suffered an injury to his right cheek.
Abraham also saw defendant and a few others from defendant's group kicking victim Carlos. Carlos saw defendant with the bat. Defendant used the bat to strike Carlos in the face, causing Carlos to fall to the ground and leaving the area below his eye "swollen" and "purple" for about two weeks.
At that point, the two groups separated and the group with defendant ran off. Before leaving, an unidentified male picked up a stool and unsuccessfully attempted to break the window of a truck parked in the driveway. However, police found the truck's rear-view mirrors had been broken and one of its doors was dented and scratched.
Detective Mario Alvarez of the San Diego Police Department investigated the incident. After speaking to various witnesses and watching the cellphone video, Detective Alvarez determined defendant was a person of interest. Detective Alvarez interviewed defendant. Although defendant admitted he knew there had been an altercation between Alejandro and Oscar a few days earlier in Tijuana, Mexico, he denied being at the scene when the fight broke out on July 21, claiming instead he was with his girlfriend. Defendant was subsequently arrested and charged.
DISCUSSION
I
A. Additional Background
The court instructed the jury with the standard instruction on assault with a deadly weapon, CALCRIM No. 875, in connection with counts 1 and 2. Defendant made no objection to, or request for modification of, CALCRIM No. 875, which was given as follows:
"Mr. Fernandez is charged on Counts 1 and Count 2 . . . with assault with a deadly weapon other than a firearm in violation of Penal Code section 245(a)(1).
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of 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 someone; [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm; [¶] AND [¶] 5. The defendant did not act in self-defense or in defense of someone else.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he . . . intend to break the law, hurt someone else, or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object (or someone else) to touch the other person.
"The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.
"A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
The record shows the court also instructed the jury as follows with CALCRIM No. 915 for the lesser-included offense of simple assault (§ 240):
"Simple assault is a Lesser Offense to both Assault with a Deadly Weapon and Assault By Means Likely to Produce Great Bodily Injury.
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of 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 someone; [¶] 4. When the defendant acted, he had the present ability to apply force to a person; [¶] AND [¶] 5. The defendant did not act in self-defense or in defense of someone else.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he . . . intend to break the law, hurt someone else, or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object (or someone else) to touch the other person.
"The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was."
B. Guiding Principles
" 'Even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case.' " (People v. Jackson (2014) 58 Cal.4th 724, 765; see People v. Cruz (2016) 2 Cal.App.5th 1178, 1183 [recognizing that a "trial court in a criminal case is required to give correct jury instructions on the general principles of law relevant to issues raised by the evidence"].) " '[T]he court has a duty to see to it that the jury are "adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law." ' " (People v. Friend (2009) 47 Cal.4th 1, 70.)
A "simple" assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) In order to be convicted of assault, there must be evidence that the defendant performed "an act likely to result in a touching, however slight, of another in a harmful or offensive manner. [Citation.]" (People v. Wyatt (2012) 55 Cal.4th 694, 702.) In contrast to a simple assault, an aggravated assault is "an assault upon the person of another with a deadly weapon or instrument other than a firearm" (§ 245, subd. (a)(1)) or "an assault upon the person of another by any means of force likely to produce great bodily injury" (id., subd. (a)(4)). "Where the assault is committed with a deadly weapon, or with force likely to produce great bodily injury, the aggravated assault is complete upon the attempted use of the force." (People v. Yeats (1977) 66 Cal.App.3d 874, 878.)
Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 788.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
Various items may, upon sufficient proof, be deemed instruments of the crime of assault with a deadly weapon. (§ 245.) "It is established that 'objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, 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. [Citations.]' [Citations.]" (In re David V. (2010) 48 Cal.4th 23, 30, fn. 5; see People v. Simons (1996) 42 Cal.App.4th 1100, 1108 [noting the distinction between an inherently deadly or dangerous weapon used in the ordinary way for which it was designed and objects which are not deadly or dangerous in the ordinary use for which they were designed is determined by what is done with the weapon].)
In contrast to an assault, a battery requires a touching. A battery is "any willful and unlawful use of force or violence upon the person of another." (§ 242.) The crime of battery is complete when there is a single offensive or harmful touching. (People v. Pinholster (1992) 1 Cal.4th 865, 961, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
C. Analysis
As noted, defendant argues that CALCRIM No. 875 misstates the law when an assault is carried out with a weapon that is not inherently deadly. Specifically, he argues (with little or no citation to any authority): "CALCRIM No. 875 creates this problem because it tells the jury that the heart of the offense is taking an act that would probably result in the 'application of force' to the victim but then defines the 'application of force' as being satisfied by 'the slightest touching.' While this instruction is correct in the rare cases where a defendant is alleged to have used an 'inherently deadly' weapon, it is not correct where an individual commits assault with a non-deadly object, such as a baseball bat."
Defendant further argues that, because a baseball bat is not "inherently deadly"—unlike "dirks and blackjacks" (citing People v. Brown (2012) 210 Cal.App.4th 1, 6), to "function as a 'deadly weapon' in an assault, a bat must be wielded in a manner that is 'capable of producing and likely to produce, death or great bodily injury.' [Citation.] In analyzing whether this has been established, 'the focus is on the force actually exerted by the defendant, not the amount of force that could have been used.' (People v. McDaniel (2008) 159 Cal.App.4th 736, 748 [(McDaniel)].)"
According to defendant, CALCRIM No. 875 "distorts this basic point" (i.e., ostensibly the "force actually exerted" by a defendant) "because it says three times that the central fact the prosecution must establish is that the defendant has taken an action that would probably result in the 'application of force' but it then defines the 'application of force' as being satisfied by 'the slightest touching' or any 'contact' at all. Thus, in this case, the jury was not required to find that [defendant] used the bat in a way that was likely to produce death or great bodily [sic]. Instead, the jury was told that the crime was established as long as appellant used a bat in a manner that would 'probably result' in a 'slight touching' or a 'contact.' "
We find defendant's argument unavailing.
First, the record evidence in the instant case clearly shows that defendant did not merely threaten to strike Luis with a baseball bat or merely apply force to this victim in such a way that it amounted to "the slightest touching" of the victim, as defendant's argument suggests. Instead, both Abraham and his mother testified they saw defendant swing and hit Luis in the back with a bat. This testimony was confirmed by cellphone video. Moreover, the record shows defendant struck Luis with sufficient force that it caused Luis to fall to the ground, left a welt on his back, and led to back pain and numbness for about a month, making it difficult for him to work.
Thus, defendant's argument ignores the actual facts of this case and improperly requires us to engage in an analysis of a set of facts that are not present in the appellate record, which, as a court of review, we cannot and will not do. (See Pacific Legal Foundation v. California Costal Com. (1982) 33 Cal.3d 158, 170 [noting that the doctrine of justiciability "prevents courts from issuing purely advisory opinions" and further noting that "judicial decisionmaking is best conducted in the context of an actual set of facts so that issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy"].) For this reason alone, we reject defendant's argument.
Second, we reject defendant's argument because it appears to confuse subdivision (a)(1) of section 245 with section (a)(4) of this statute. Citing McDaniel, supra, 159 Cal.App.4th at page 748, as noted ante defendant argues that, in analyzing whether a non-inherently deadly weapon such as a baseball bat is "capable of producing and likely to produce" death or great bodily injury, the focus must be on the "force actually exerted by the defendant, not the amount of force that could have been used."
We note the language defendant quotes from McDaniel did not involve the crime of assault with a deadly weapon under subdivision (a)(1) of section 245, but instead pertained to the different crime of aggravated assault upon the person of another "by any means of force likely to produce great bodily injury" under subdivision (a)(4) of section 245. Because the court in McDaniel reversed the defendant's conviction on due process grounds, it addressed for "future guidance in the event of retrial" whether the court should instruct on the lesser included offense of "simple assault" in addition to "assault by force likely to produce great bodily injury." (McDaniel, supra, 159 Cal.App.4th at p. 748.) In so doing, the McDaniel court specifically recognized the defendant could not be guilty of assault with a deadly weapon under subdivision (a)(1) of this statute because the jury had "expressly found . . . that the assault was not committed with a deadly or dangerous weapon," despite expert testimony that the victim sustained an injury that was consistent with a sharp object, as opposed to being punched or kicked by the defendant. (McDaniel, at p. 748.)
Moreover, our high court in People v. Aguilar (1997) 16 Cal.4th 1023, 1028, recognized subdivision (a)(1) and (4) of section 245 are separate offenses of aggravated assault: "One may commit an assault without making actual physical contact with the person of the victim; because [section 245] focuses on use of a deadly weapon or instrument [i.e., subdivision (a)(1)] or, alternatively, on force likely to produce great bodily injury [i.e., subdivision (a)(4)], whether the victim in fact suffers any harm is immaterial."
The issue in Aguilar was whether the use of hands or fists alone may support a conviction of assault with a deadly weapon under subdivision (a)(1) of section 245. In concluding a "deadly weapon" within the meaning of section 245, subdivision (a)(1) "must be an object extrinsic to the human body" (Aguilar, supra, 16 Cal.4th at p. 1034), the Aguilar court recognized it was "well established" that the use of hands and feet alone may support a conviction of assault " 'by means of force likely to produce great bodily injury' " under subdivision (a)(4) of this statute. (Aguilar, at p. 1028, quoting People v. Wingo (1975) 14 Cal.3d 169, 176.)
Because defendant's conviction on count 1 was for aggravated assault under subdivision (a)(1) of section 245, to wit: using a baseball bat, we conclude McDaniel is inapposite. We thus reject defendant's contention the jury was improperly instructed with respect to the force, if any, needed or "exerted" that was "likely to produce great bodily injury," as these elements pertain to aggravated assault under subdivision (a)(4) of section 245.
Finally, even if there was instructional error as defendant alleges, we conclude any such error was harmless under any standard of review. As noted, the jury was instructed that a "deadly weapon" for purposes of subdivision (a)(1) of section 245 and CALCRIM No. 875 included an "object, instrument, or weapon . . . that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
Here, the record evidence, as summarized ante, shows that a few days before the July 21 incident, defendant and Oscar came to Alejandro's home angry and looking to fight; that when Andres told the men Alejandro was not home, they broke Alejandro's mother's car window; that on the day of the incident, defendant called Abraham myriad times, threatening to drag Abraham's mother out of the home "by her hair" while standing in front of that home; that about five minutes after a police officer left the home, defendant returned with several other men demanding that Alejandro come outside; that defendant was with a group of men who had a knife, a baton, at least three, thick metal pipes, and a baseball bat; that when defendant and his group approached they were angry and aggressive; that a fight broke out between the two groups, which together numbered about 15 males; that both Abraham and his mother saw defendant strike Luis in the back with a baseball bat; that cellphone video also captured the blow; and that the blow to Luis was delivered with such force as to knock Luis to the ground, leaving a welt on his back and causing him pain and numbness for about a month.
Such evidence supports our conclusion beyond a reasonable doubt that the jury verdict in this case would have been the same even if the jury was required to find that defendant administered the blow to Luis with more than a "slight[] touching," as defendant argues; or to consider the force actually exerted by defendant and whether such force was "likely to produce great bodily injury," as he also argues. (See CALCRIM No. 875; see also People v. McCloud (2017) 15 Cal.App.5th 948, 957 [noting a reviewing court should not find an instructional error harmless unless it can conclude beyond a reasonable doubt, after a thorough examination of the record, that the jury verdict would have been the same absent the alleged error].)
II
Defendant next opposes the imposition of an $820 fine, alleging the court failed to specify a statutory basis for such.
At sentencing, the record shows the court imposed the $820 fine, as set forth in paragraph 2, subdivision (a) of the order granting felony probation. A worksheet accompanying this order specifies the breakdown of the $820 fine as follows: "2a. Offense Base Fine + Penalty Assessment + PC 1465.7(a) Surcharge [$]820." Below this notation, under the heading "Fine Calculation for 'INCLUDING Penalty Assessment' Fines," it provides: "2a CH1—Base Fine [$]200 [¶;] PA 5—Penalty Assessment [$]580 [¶; and] SUR—State Sur Charge [$] 40," for a total fine of $820.
The People contend that the notation "CH1—Base Fine" refers to the first charge in the information, count 1, for which defendant was convicted of in this case. The People further contend that subdivision (a)(1) of section 245 provides for the imposition of a fine up to $10,000, and thus, the base fine of $200 was statutorily authorized.
Although it appears the People's analysis is probably correct, we conclude the better practice is to remand to allow the trial court to clarify the statutory basis for imposition of this fine.
DISPOSITION
The issue of the $820 fine is remanded for the trial court to clarify the statutory basis for its imposition. In all other respects, defendant's judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. NARES, J.