Opinion
B301140
08-13-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD FRYE, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo, Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA144591) APPEAL from a judgment of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo, Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
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Edward Frye (defendant) argues that his conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) must be overturned because the trial court did not instruct the jury on the lesser included offense of simple assault (§ 240, subd. (a)). Because substantial evidence did not support a finding that defendant committed an assault without a deadly weapon, there was no error. Accordingly, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On the Thursday evening of October 26, 2017, defendant punched Mauricio Franco (Franco) in the head and, when Franco fell to the ground, stabbed him several times with a knife. Although the melee itself was done and over within mere minutes, Franco's injuries were lasting and severe—one of the blows punctured Franco's lung; Franco's chest, face, wrist, back, neck and earlobe were sliced; the tendons in his left hand were cut so he can no longer close his hand completely; and his ankle was crushed.
The cause and course of the melee was the subject of dispute.
Franco said he saw defendant standing near Franco's property, recognized him as a person who had previously trespassed onto his property, and walked up to him to ask him not to trespass again. When Franco approached, defendant punched him in the head. Franco then fell to the ground. Franco thereafter felt defendant punch him several times before losing consciousness. Although Franco did not see any knife, the latter punches were, in actuality, stabs with a knife. Franco's neighbors heard Franco's screams, came outside to see defendant repeatedly stabbing the prone Franco, and yelled at defendant, who then fled.
Defendant testified, and said that Franco walked up to him while he was minding his own business. Franco had a knife and swung that knife at defendant. That was when defendant punched Franco, got control of the knife, and proceeded to stab him several times. Defendant then jogged off with the knife and washed the blood from the knife when he got home. Even after the washing, the knife's blade still had Franco's DNA on it. Defendant's sole injury was a blemish to his forearm.
Franco was 57; defendant, 36.
II. Procedural Background
In the operative, Second Amended Information, the People charged defendant with (1) attempted premeditated murder (§§ 187, subd. (a), 664), and (2) assault with a deadly weapon (§ 245, subd. (a)(1)), namely, a knife. As to both counts, the People alleged that defendant "personally inflicted great bodily injury" upon Franco (§ 12022.7, subd. (a)). The People further alleged that defendant "personally used a deadly and dangerous weapon" (namely, a knife) when committing the attempted premediated murder (§ 12022, subd. (b)(1)).
The matter proceeded to a jury trial. The trial court instructed the jury on the charged crimes of attempted premeditated murder and assault with a deadly weapon, as well as self-defense as to each crime. The court also instructed the jury on the crime of attempted voluntary manslaughter based on imperfect self-defense. The court did not instruct on the crime of simple assault as a lesser included offense to assault with a deadly weapon "because [defendant] himself testified that he used a knife" during the assault. The court invited further argument on this point, but defendant offered none.
A prior jury hung on a sole count of attempted premeditated murder, which prompted the court to declare a mistrial.
The jury found defendant guilty of attempted voluntary manslaughter and assault with a deadly weapon, and found true the allegations that defendant personally inflicted great bodily injury upon Franco and, as to the attempted voluntary manslaughter, had personally used a dangerous and deadly weapon.
At sentencing, the trial court sentenced defendant to seven years in state prison. The court imposed a seven-year sentence on the attempted voluntary manslaughter count comprised of a three-year base term, plus three years for the personal infliction of great bodily injury, plus one year for personal use of a deadly or dangerous weapon. The court imposed a three-year sentence for assault with a deadly weapon, but stayed it under section 654.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in not instructing the jury on the crime of simple assault as a lesser included offense to assault with a deadly weapon. We reject this argument for two reasons—namely, the trial court did not err in forgoing this instruction and any error was harmless.
I. No Error
A trial court has the duty to instruct a jury on "'"all general principles of law relevant to the issues raised by the evidence,"'" including on any "lesser included offenses." (People v. Whalen (2013) 56 Cal.4th 1, 68.) The duty to instruct on lesser included offenses turns on whether "'there [was] "substantial evidence" from which a rational jury could conclude that the defendant committed the lesser offense,'" but not the greater, charged offense. (Ibid.; People v. Cruz (2008) 44 Cal.4th 636, 664.) Because simple assault is a lesser included offense to assault with a deadly weapon (People v. McDaniel (2008) 159 Cal.App.4th 736, 747; People v. Golde (2008) 163 Cal.App.4th 101, 115 (Golde)), and because what distinguishes the lesser from the greater is whether the defendant used a deadly weapon (People v. Carmen (1951) 36 Cal.2d 768, 775), whether the trial court erred in this case turns on whether there is substantial evidence from which a rational jury could conclude that defendant committed an assault without a deadly weapon. In making this assessment, we independently examine the record in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v. Posey (2004) 32 Cal.4th 193, 218.)
The trial court properly declined to instruct the jury on the lesser included offense of simple assault because, even when viewed in the light most favorable to the defendant, there was no substantial evidence from which a rational jury could conclude that defendant committed an assault—but not an assault with a deadly weapon. That is because everyone—Franco, the two neighbors who witnessed the melee, and the defendant himself—all testified that defendant repeatedly stabbed Franco with a knife. Because it was also undisputed in this case that the knife is a deadly weapon, the only type of assault that a rational jury could find on the evidence in this case was an assault with a deadly weapon.
Defendant resists this conclusion with three arguments.
First, defendant argues that his assault on Franco can be broken down into two assaults—namely, (1) an initial assault where defendant punched Franco, and (2) a subsequent assault where defendant stabbed Franco repeatedly. Because, defendant continues, the initial assault was committed with the non-deadly weapons of his fists, a rational jury could find his initial assault to have been a simple assault. Thus, he concludes, a simple assault instruction was warranted.
We reject this argument. This argument ignores (1) that the People chose to treat the entire melee as a single, continuous incident and to charge that incident as an assault with a deadly weapon, and (2) that, during that continuous, single incident, defendant indisputably used a deadly weapon. To the extent defendant is effectively arguing that the People should have charged the incident as two separate assaults, he forfeited that argument by not demurring to the operative complaint. (People v. McNeill (1980) 112 Cal.App.3d 330, 334-335 [when an "accusatory pleading [is] . . . defective in alleging multiple offenses in one count," a defendant's failure to demur to that defect "waive[s] objection to the defect"].) There was no charging error in any event. Although the People could have charged two separate counts of assault based on the melee between defendant and Franco (e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 63 [People may charge an assault involving a knife and punches as two separate assaults]), the People also had the discretion to charge a single count of assault with a deadly weapon based on the same melee (e.g., People v. Oppenheimer (1909) 156 Cal. 733, 739-740, superseded on other grounds by § 954 ["The mere fact that two weapons are used does not necessarily show two assaults"]; see generally, Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 ["'[T]he prosecuting authorities . . . ordinarily have the sole discretion to determine . . . what charges to bring.'"]).
Second, defendant argues that the record, when viewed in the light most favorable to him (and which therefore requires us to accept his testimony as true), shows that Franco started the melee. This is true, but irrelevant to the question of whether defendant committed the charged assault without using a knife.
Lastly, defendant argues that the jury's verdict acquitting him of attempted premeditated murder proves that the jury "rejected most if not all of the testimony by Franco." Even if we accept defendant's extrapolation of the verdict as true, what this jury did during its deliberations is irrelevant to how that jury should have been instructed prior to those deliberations. (Golde, supra, 163 Cal.App.4th at p. 116 [rejecting jury's subsequent "acquittal on other charges" as "immaterial to the question whether the trial court was required to give a particular instruction based on the state of the evidence."].)
There is good reason not to, given that the jury's verdict convicting defendant of attempted voluntary manslaughter necessarily rests on its findings that defendant acted with intent to kill and did not act in self-defense.
II. Any Error Was Harmless
A trial court's error in not instructing on a lesser included offense is harmless—and thus "not subject to reversal"—"unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman (1998) 19 Cal.4th 142, 165 (Breverman); People v. Gonzalez (2018) 5 Cal.5th 186, 199.)
Under this standard, any error by the trial court in not instructing on the crime of simple assault was harmless because there is no reasonable probability that the jury would have returned a verdict on simple assault. The same melee underlies both the attempted voluntary manslaughter count and the assault with a deadly weapon count. Given that the jury here found that defendant "personally used a deadly and dangerous weapon" in committing the attempted voluntary manslaughter, it is not reasonably probable that they would not make the same finding with respect to the assault count.
Defendant's sole argument to the contrary is that any error is per se reversible (as structural error) or reversible unless shown to be harmless beyond a reasonable doubt. Our Supreme Court has already rejected both arguments. (Breverman, supra, 19 Cal.4th at p. 165.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ