Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA082447, Mark C. Kim, Judge.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Following a jury trial, defendant, Kevin Wayne Loveless, was convicted of assault by means of force likely to produce great bodily injury (Pen Code, § 245, subd. (a)(1); count 1) and battery with serious bodily injury (§ 243, subd. (d); count 2). The jury found defendant personally inflicted great bodily injury in the commission of the assault. (§ 12022.7, subd. (a).) The trial court found defendant had served three prior separate prison terms. (§ 667.5, subd. (b).) Defendant was sentenced to 9 years in state prison on count 1. The trial court stayed imposition of sentence on count 2 under section 654.
Unless otherwise indicated, all future statutory references are to the Penal Code.
Defendant argues the trial court erred prejudicially when it failed to instruct the jury, sua sponte, on the lesser included offense of simple assault. We conclude a lesser included simple assault instruction was not warranted and even if such an instruction was required, any error was harmless. However, we reverse the judgment and remand with directions to impose a sentence on count 2 and then stay execution of that sentence. We also modify the judgment with respect to applicable fees.
II. THE EVIDENCE
On June 16, 2009, Alfred Garcia was standing on a patio at the Long Beach Christian Outreach Center, where he had been engaged in conversation with Luis Perez. Defendant approached Mr. Garcia and said, “Is that my bag?” Defendant punched Mr. Garcia in the face almost immediately after asking the question. Defendant did not rear back or step into the punch. Mr. Garcia fell straight back to the ground, hitting the back of his head on cement. He was unconscious for approximately five to seven minutes. When he regained consciousness he was incoherent.
Mr. Garcia sustained scrape injuries to the right, rear portion of his head and the left side of his face. A two-inch section in the back of his head was saturated with blood. An emergency room physician diagnosed a serious and life-threatening blunt force head injury, which caused bleeding in the brain. Mr. Garcia spent three days in intensive care and remained hospitalized for three months, including two months in a rehabilitation facility. He had no memory of the altercation.
Defendant testified on his own behalf. On the date in question, he went to the Christian Outreach Center to pass some time before exercising. He checked his bag in as required. But, when he later attempted to retrieve it, the bag was missing. He thought Mr. Garcia was about to punch him so defendant struck Mr. Garcia.
III. DISCUSSION
A. Instructional Error
1. The Trial Court had no Sua Sponte Duty to Instruct on Simple Assault as a Lesser Included Offense
Defendant argues the trial court committed reversible error by not providing the jury, sua sponte, with a lesser included simple assault instruction as to count 1, assault by means of force likely to cause great bodily injury. (See People v. Carmen (1951) 36 Cal.2d 768, 775, disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [simple assault is a lesser included of aggravated assault]; People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 [same].) Even absent a request, and even over a party’s objection, the trial court must instruct on a lesser included offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Birks (1998) 19 Cal.4th 108, 118; People v. Waidla (2000) 22 Cal.4th 690, 733.) However, the trial court is not obligated to instruct sua sponte on theories unsupported or only weakly supported by the evidence. (People v. Reeves (2001) 91 Cal.App.4th 14, 51.) A court is required to instruct on the lesser included offense only if there “is “‘evidence from which a jury composed of reasonable [persons] could... conclude[ ]’” that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
The trial court gave the jury an instruction defining simple assault. It also instructed the jury on simple battery as a lesser included offense to battery with serious bodily injury. But it never instructed the jurors that if they were not satisfied beyond a reasonable doubt that defendant was guilty of assault with force likely to produce great bodily injury they could find him guilty of the lesser crime of simple assault. The duty to instruct sua sponte on lesser included offenses is not fulfilled by giving an instruction merely defining the lesser included offense. (People v. Rupert (1971) 20 Cal.App.3d 961, 968-969.)
Our review is de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Waidla, supra, 22 Cal.4th at p. 733.) We conclude the evidence did not warrant an instruction on the lesser included offense because there was no substantial evidence from which a jury could reasonably conclude defendant committed only a simple assault. (See e.g., People v. Golde (2008) 163 Cal.App.4th 101, 116 [defendant “drove a motor vehicle toward the 4-foot, 11-inch, 83-pound victim, and repositioned the vehicle in her direction when she tried to move out of its way”]; People v. McDaniel, supra, 159 Cal.App.4th at p. 749 [defendant hit the victim with enough force to fracture his own knuckle]; People v. Berry (1976) 18 Cal.3d 509, 518-519 [defendant choked the victim until she became unconscious].)
Defendant punched Mr. Garcia in the face with force sufficient to knock Mr. Garcia to the ground and render him unconscious. Mr. Garcia suffered a life-threatening head injury with bleeding in the brain. The fact that defendant only punched Mr. Garcia once is not substantial evidence that only simple assault and not assault by means of force likely to produce great bodily injury occurred. “The use of hands or fists alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury.” (People v. Wingo (1975) 14 Cal.3d 169, 176; accord, People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
Section 245, subdivision (a)(1) focuses on whether the force used was likely to produce great bodily injury irrespective of how many times force was used. (See People v. Rupert, supra, 20 Cal.App.3d at p. 967.) Defendant struck a man who was almost 70 years old with such force that the man was not able to brace himself for the fall. Although defendant did not step into the punch, he admitted he “swung as fast as [he] could.” There was no substantial evidence defendant was only guilty of simple assault and not assault by means of force likely to produce great bodily injury. Therefore, the trial court had no sua sponte duty to instruct on simple assault as a lesser included offense.
2. Any Error was Harmless
Even if there was error, it was harmless. “[F]ailure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.” (People v. Breverman, supra, 19 Cal.4th at p. 165.) We apply the Watson test. (People v. Breverman, supra, 19 Cal.4th at p. 176.) The judgment will be affirmed absent a reasonable probability a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) A reasonable probability is one sufficient to undermine confidence in the outcome of the proceedings. (Strickland v. Washington (1984) 466 U.S. 668, 694; In re Neely (1993) 6 Cal.4th 901, 909.)
The jury was correctly instructed, “To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault.” Actual injury is not an element of an assault with force likely to produce great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at p. 1028; People v. Wingo, supra, 14 Cal.3d at pp. 176-177.) As noted above, section 245, subdivision (a)(1) focuses on whether the force used was likely to produce great bodily injury. (See People v. Rupert, supra, 20 Cal.App.3d at p. 967.) But the jury may consider the injury inflicted in determining whether the assault was with force likely to produce great bodily injury. Whether the force used was likely to produce great bodily injury is a question of fact for the jury’s determination based on all the evidence including, but not limited to, the injury inflicted. (People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
After hearing all the evidence, the jury found defendant had committed assault by means of force likely to produce great bodily injury. Additionally the jury found true that defendant personally inflicted great bodily injury on Mr. Garcia. The jury also convicted defendant of battery with serious bodily injury despite having been instructed on simple battery as a lesser included offense. Given the jury’s findings, it is not reasonably probable the result would have been more favorable to defendant had a lesser included simple assault instruction been given.
B. Sentencing Issues
1. Imposition of Sentence on Count 2
It was error to stay the sentence on count 2 pursuant to section 654 without first pronouncing sentence. The proper procedure is to impose sentence on count 2 and then stay execution of that sentence. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; see People v. Lewis (2008) 43 Cal.4th 415, 519.) The matter is remanded with directions to correct this sentencing error. (See People v. Bonillas (1989) 48 Cal.3d 757, 802.)
2. Government Code Section 70373
The trial court should have imposed a $30 court facilities assessment on counts 1 and 2 pursuant to Government Code section 70373, subdivision (a)(1). “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense....” (Gov. Code, § 70373, italics added.) The court facilities assessment is mandatory and is not subject to a section 654 stay. (People v. Woods (2010) 191 Cal.App.4th 269, 272.) The judgment must be modified to impose the $30 court facilities assessment as to counts 1 and 2 for a total of $60.
3. Section 1465.8, Subdivision (a)(1)
The trial court imposed a $30 court security fee (§ 1465.8, subd. (a)(1)) on count 1 but not on count 2. The court security fee is mandatory as to each count and is not subject to a section 654 stay. (People v. Woods, supra, 191 Cal.App.4th at p. 272; People v. Crittle (2007) 154 Cal.App.4th 368, 371.) The judgment must be modified to impose the $30 court security fee as to both counts 1 and 2 for a total fee of $60.
IV. DISPOSITION
The judgment is affirmed. However, the case is remanded for the trial court to impose sentence on count 2 and then stay execution of that sentence. The judgment must also be modified to include the additional court security fee and court facilities assessments discussed in this opinion.
We concur: ARMSTRONG, ACTING P.J., MOSK, J.