Opinion
B321797
05-09-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAUDA, Defendant and Appellant.
Brian C. McComas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA499286 David R. Fields, Judge. Reversed with directions and remanded for further proceedings.
Brian C. McComas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
RAPHAEL, J. [*]
A jury convicted Anthony Rauda on two counts of felony battery on a peace officer. On appeal, Rauda argues the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of misdemeanor battery on a peace officer for one of the counts. Misdemeanor battery on a peace officer, unlike the felony, does not require an injury. The relevant statute defines an injury as any physical injury requiring professional medical treatment. Because there was substantial evidence from which a jury could reasonably conclude that the injury to the officer did not require professional medical treatment, we reverse Rauda's conviction on count 1 and remand for either a retrial on count 1 or a resentencing on count 1 as a misdemeanor and on count 2 as a felony.
Throughout this opinion, we occasionally use the word "injury" to describe physical harm or damage to peace officers, as distinct from the statutory definition of an injury that requires professional medical treatment. Context makes these two different uses clear.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Events of March 2020
In March 2020, Rauda was in custody. Los Angeles County Sheriff's Department Deputy David Fregoso was working as a bailiff in a courtroom where Rauda appeared for a hearing. At some point during the hearing, Rauda got very upset. He talked over the judge in an aggressive tone and used profanity.
Fregoso and two other deputies then went to remove Rauda from the courtroom. Fregoso leaned over to move Rauda's chair back so he could stand up. Fregoso testified that Rauda then swung at Fregoso with a closed fist and struck his face. Rauda was holding papers in the hand that he used to hit Fregoso. Rauda denied hitting Fregoso with his fist.
Fregoso then punched Rauda in the face with his right fist and conducted a "team takedown" with the two other deputies. Fregoso testified Rauda resisted. The deputies wrestled Rauda to the floor. On the way down, Fregoso hit a chair. Rauda continued resisting on the floor. The deputies repeatedly punched Rauda when he was on the floor.
Fregoso felt a slight pain in his lower jaw that lasted a couple of hours. The pain did not interfere with his ability to speak or eat and abated with the help of pain medication. Rauda's punch did not break Fregoso's skin or cause redness or swelling. Fregoso did not think it was fair to describe Rauda's punch as just a glancing or minor blow. One of the other deputies who was present did not hear Fregoso complain about pain or injury to his face.
Fregoso testified that he "sustained an injury to [his] left wrist" between the time he punched Rauda with his right fist and the time he was on the ground. Fregoso did not know how he sustained the injury to his left wrist. He noticed his wrist hurt a couple of seconds after he walked away from the incident and saw blood on his left finger. Fregoso's finger did not require any medical treatment, just cleaning.
After the incident, Fregoso went to Healthworks, a medical facility for deputies who are injured while on duty in courtrooms, for medical treatment. The physicians at Healthworks gave Fregoso a brace, pain medication, and an ice pack for his left wrist. Fregoso wore the wrist brace for about a week, including when he was driving and most of the time when he slept. The wrist pain lasted for one to two weeks. Fregoso was unsure if the pain medication was over-the-counter or prescription, and he did not remember how long he took the medication. The doctor gave Fregoso a note, but Fregoso went to work the next day and did not take any time off.
B. The Events of March 2022
In March 2022, Deputy Duri Nunez was escorting Rauda back to his jail cell from court. After deputies unstrapped Rauda from his safety chair to return him to his cell, Rauda turned toward Nunez and said, "It's all your fault bitch." Rauda then swung his fist and struck Nunez behind her earlobe with a sharpened pencil poking out of his fist. Nunez assisted in taking Rauda down. Nunez had a puncture wound on the back of her neck, which bled. Nunez went to Healthworks, where a doctor gave her over-the-counter pain medication and a heating pad. Nunez's pain lasted for a week or two, and she took pain medication.
C. The Charges, Trial, Verdicts, and Sentence
The People charged Rauda with two counts of felony battery on a peace officer. (Pen. Code, § 243, subd. (c)(2).) The first count was for the incident involving Fregoso, and the second count was for the incident involving Nunez that Rauda does not challenge on appeal. As to each count, the People specially alleged Rauda engaged in violent conduct that indicated a serious danger to society, an aggravating sentencing factor under California Rules of Court, rule 4.421(b)(1). Rauda pleaded not guilty and denied the special allegations.
All statutory references are to the Penal Code.
The case proceeded to a jury trial. Before the trial court instructed the jury, Rauda's counsel requested the court instruct on misdemeanor battery on a peace officer, which does not require an injury to the officer, as a lesser included offense of the felony. The People opposed the request, arguing the misdemeanor was not a lesser included offense because a finding there was no injury (defined as requiring professional medical treatment) would result in an acquittal, rather than reducing the offense to simple battery. The People argued Fregoso's wrist "of course required medical care because [it was] in a brace" and that "[hadn't] been controverted in any way." The court declined to instruct the jury on the lesser included offense of misdemeanor battery on a peace officer because it found there was "no significant evidence that there was no injury whatsoever."
The jury returned a verdict of guilty on both counts. As to count 1, the jury could not reach a verdict on the special allegation that Rauda engaged in violent behavior that indicated a serious danger to society, and the court dismissed the allegation. As to count 2, the jury found the special allegation true. The court sentenced Rauda to an aggregate term of imprisonment of three years and eight months, comprised of three years on count 1 and a consecutive term of eight months (one-third the middle term of two years) on count 2. Rauda timely appealed.
The court sentenced Rauda to the upper term of three years on count 1 after it found beyond a reasonable doubt at the sentencing hearing that Rauda had served a prior term in county jail under section 1170, subdivision (h). Rauda's prior term in county jail was an aggravating factor under California Rules of Court, rule 4.421(b)(3).
DISCUSSION
A. Applicable Law and Standard of Review
"'"'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.'"'" (People v. Souza (2012) 54 Cal.4th 90, 114, quoting People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) "It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury." (People v. Booker (2011) 51 Cal.4th 141, 181; accord, Breverman, at p. 177.) "'"'"Substantial evidence" in this context is "'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]'" that the lesser offense, but not the greater, was committed.'"'" (People v. Mendoza (2015) 240 Cal.App.4th 72, 80.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (Breverman, at p. 177.)
We review a claim that a court failed to instruct on a lesser included offense de novo, construing the evidence in the light most favorable to the defendant. (People v. Smith (2021) 70 Cal.App.5th 298, 308.) We evaluate the trial court's error in failing to give a lesser included instruction for prejudice under the People v. Watson (1956) 46 Cal.2d 818 standard. Thus, we must reverse if the defendant shows there is a reasonable probability that the defendant would have obtained a more favorable outcome if the instruction had been given. (Breverman, supra, 19 Cal.4th at p. 178; People v. Soojian (2010) 190 Cal.App.4th 491, 520-521 [a hung jury is a more favorable result than a guilty verdict].) A reasonable probability "'"'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'"'" (People v. Hendrix (2022) 13 Cal.5th 933, 944.) "In assessing prejudice, we consider both the magnitude of the error and the closeness of the case." (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.)
B. The Trial Court Prejudicially Erred in Not Instructing the Jury on Misdemeanor Battery on a Peace Officer as a Lesser Included Offense of Felony Battery on a Peace Officer
Rauda asserts the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of misdemeanor battery on a peace officer as to count 1 because there was substantial evidence from which the jury could have found Fregoso's wrist and face did not require professional medical treatment. We agree.
1. The trial court had a duty to instruct the jury on the lesser included offense of misdemeanor battery on a peace officer
Misdemeanor battery on a peace officer is the willful and unlawful touching of a peace officer during the performance of the officer's lawful duties. (§ 243, subd. (b).) The greater offense of felony battery on a peace officer requires proof that the officer sustained an injury. (§ 243, subd. (c)(2).) Misdemeanor battery on a peace officer is necessarily a lesser included offense of felony battery on a peace officer. (People v. Hayes (2006) 142 Cal.App.4th 175, 181, fn. 3 (Hayes).) "The issue here is whether the record contains substantial evidence that would absolve [Rauda] of battery with injury on [Fregoso], but justify conviction of the lesser included offense of battery without injury." (Id. at p. 181.)
The jury must be instructed on misdemeanor battery on a peace officer if there is "substantial support in the evidence" that there was no injury sufficient to result in felony battery on a peace officer. (People v. Rogers (2006) 39 Cal.4th 826, 867.) "Injury" is defined as "any physical injury which requires professional medical treatment." (§ 243, subd. (f)(5).) The test for determining injury is "objective and factual." (People v. Longoria (1995) 34 Cal.App.4th 12, 17.) "A peace officer who obtains 'medical treatment' when none is required, has not sustained an 'injury' within the meaning of section 243, subdivision (c). And a peace officer who does not obtain 'medical treatment' when such treatment is required, has sustained an 'injury' within the meaning of section 243, subdivision (c)." (Longoria, fn. omitted.)
It appears the trial court may have employed the incorrect test in declining to instruct on the lesser included offense. The trial court stated, "To give a lesser, there has to be an argument that there was no injury whatsoever.... I don't think there's any significant evidence of no injury whatsoever. Certainly on count 2 there is, you know, the picture of the stab wound.... There's no significant evidence that there was no injury whatsoever because even in the fracas, Deputy Fregoso got injured, and [that] can be attributable to your client even if the strike on the jaw wasn't made by your client." Although the trial court acknowledged there was a statutory definition, it seems the court used the colloquial definition of "injury," equivalent to harm or damage, as opposed to the statutory definition of "any physical injury which requires professional medical treatment." (§ 243, subd. (f)(5).)
Hayes is instructive. (Hayes, supra, 142 Cal.App.4th at p. 178.) There, the defendant kicked a 50-pound concrete ashtray "'with great force.'" (Id. at p. 179.) It toppled over and struck a probation officer in the shin, ripping his pants and leaving a four to four and one-half inch laceration. (Ibid.) "'There was a little blood' on the laceration and 'a little swelling.'" (Ibid.) The officer put ice on his leg but "chose not to seek professional medical treatment because he believed that he 'could deal with it on [his] own.'" (Ibid.) His leg "was sore for several days" and healed in "approximately one week." (Ibid.) The Hayes court concluded a reasonable jury could find the damage to the officer's leg was not severe enough to require professional medical treatment. (Id. at pp. 181-182.) Hayes held that the trial court erred in not instructing on the lesser included misdemeanor and that the error was not harmless. (Ibid.)
Fregoso's wrist injury bears similarities to the officer's injury in Hayes. Fregoso had a small amount of blood from broken skin, stated his injury healed in about one week, and did not take any time off work. (See Hayes, supra, 142 Cal.App.4th at p. 179.) Like the officer in Hayes, Fregoso did not testify his injuries interfered with his duties or his ability to perform work. (Ibid.)
There are also differences from Hayes, some of which indicate the injuries here were less severe. For example, in Hayes, a 50-pound concrete ashtray fell on the officer, leaving a swollen four to four and one-half inch laceration. (See Hayes, supra, 142 Cal.App.4th at p. 179.) Fregoso, by contrast, had a minor skin break (indicated by blood on his finger). Regarding the injury to his face, Fregoso testified his face was not red or swollen and the slight pain lasted a couple of hours. Cases have found similar symptoms insufficient to support an injury under the statute. (See In re Michael P. (1996) 50 Cal.App.4th 1525, 1529-1530 [officer's testimony of soreness in his chest and chin after being kicked by defendant and not reporting the injury was insufficient to support a finding of injury as defined in the statute]; In re D.W. (2015) 236 Cal.App.4th 313, 316, 319-320 [redness and irritation of officer's eye after defendant spit in it was not substantial evidence of injury, even though officer's vision was blurry and he had follow up blood tests for several weeks].)
Some of the differences from Hayes, on the other hand, indicate the injury to Fregoso's wrist was more severe than the injury in that case. Unlike the officer in Hayes, who stated he "chose not to seek professional medical treatment because he believed that he 'could deal with it on [his] own,'" Fregoso visited a physician and obtained a doctor's note, pain medication, and a brace. (Hayes, supra, 142 Cal.App.4th at p. 179.) Fregoso stated his wrist was sore for one to two weeks and that he took pain medication, whereas the officer in Hayes stated his leg was sore for several days and did not testify he took pain medication. (Ibid.)
The record does not include the doctor's note, so it is unclear what the note stated about Fregoso's injuries and any physical restrictions he may have had. It appears from Fregoso's testimony that the doctor's note gave him permission to take time off work, if he elected to.
Overall, based on the evidence, which we construe in the light most favorable to Rauda, a reasonable jury could conclude that Fregoso's injuries were not serious enough to require professional medical treatment. (See Hayes, supra, 142 Cal.App.4th at pp. 181-182; cf. People v. Longoria, supra, 34 Cal.App.4th at pp. 15-17 [finding sufficient evidence of an injury where the defendant kicked an officer in the groin and cut and crushed the officer's hand between his handcuffs and the floor, and where the officer "'appeared in a great deal of pain,'" had cuts on his fingers and the bottom of his hand, could no longer hold his gun, had difficulty unwrapping his holster, had his hand X-rayed by a doctor, and was placed on restrictive duty answering phone calls for three to five days].)
In addition to the trial transcripts and clerk's transcript, we requested from the trial court, received, and reviewed the trial exhibits of the videos of the incidents (exhibits 1 and 3), the photograph of Fregoso's wrist (exhibit 2), and the photographs of Nunez's neck (exhibits 4 and 5).
Although Fregoso sought treatment at the medical facility for deputies injured while on duty in courtrooms, "[i]t is the nature, extent, and seriousness of the injury-not the inclination or disinclination of the victim to seek medical treatment-which is determinative." (People v. Longoria, supra, 34 Cal.App.4th at p. 17.) The People argue Rauda "presented no evidence refuting the medical treatment that [Fregoso] sought and received." But Rauda did not have to present evidence refuting that the officer sought medical care. Instead, the question is whether the injury required the deputy to seek medical care. As in Hayes, there was substantial evidence that Fregoso did not require professional medical treatment. (See Hayes, supra, 142 Cal.App.4th at pp. 181-182.)
Rauda also argues instruction on the lesser included offense was warranted because there were disputed factual issues as to whether Rauda caused Fregoso's wrist injury or whether "Fregoso sustained the injury as a result of the deputies' attempted takedown of appellant." We do not need to consider this issue because we hold a reasonable jury could conclude Fregoso did not require professional medical treatment and reverse on that basis. (See People v. Rodriguez (2018) 26 Cal.App.5th 890, 902 ["Because we have concluded that the assault instructions were reversibly erroneous since they failed to include the lesser included offense, we need not address this additional issue."], affd. (2020) 9 Cal.5th 474.)
2. The trial court's error was prejudicial
In assessing prejudice, it does not matter that the jury chose to convict the defendant of the greater offense over acquittal or that the defendant was convicted of the greater offense on sufficient evidence. (Breverman, supra, 19 Cal.4th at p. 178, fn. 25.) The rationale for requiring courts to instruct on lesser included offenses is to avoid forcing the jury into an "'unwarranted all-or-nothing choice'" that creates the risk the jury will convict on the charged offense even though one of the elements remains in doubt because "'the defendant is plainly guilty of some offense.'" (People v. Hughes (2002) 27 Cal.4th 287, 365.)
Here, the failure to instruct was prejudicial because there was a "reasonable probability that at least one juror would have voted to convict" Rauda of the misdemeanor "if given the chance." (People v. Vasquez (2018) 30 Cal.App.5th 786, 798.) Rauda's counsel focused on Fregoso's symptoms and treatment, which demonstrated that the defense's theory was to attack a need for professional medical treatment. (See id. at p. 799 ["The failure to instruct on a lesser included offense is more likely to be prejudicial where it strikes at the heart of the defense"].) On cross-examination, Rauda's counsel questioned Fregoso about the extent of the injuries to his face and wrist, his pain, his medical treatment, whether the pain medication was over-the-counter or required a doctor's prescription, and how long he wore the wrist brace. Rauda's counsel also sought to discuss misdemeanor battery on a peace officer in his opening statement, but the trial court stated it was a legal issue inappropriate for opening statements.
The trial court later acknowledged Rauda's counsel's focus on the deputies' injuries when discussing whether to instruct on the lesser included offense. It stated to Rauda's counsel, "[W]as the injury significant enough to warrant medical attention? And that can be argued. And I know you asked questions to that effect when you were asking questions about their treatment and how long did you take meds for and what the pain severity was. You were getting at all that for this purpose I'm sure, right, counsel?" Rauda's counsel answered, "Right."
The People also focused on Fregoso's injuries. The prosecutor mentioned Fregoso's wrist in the opening statement and outlined relatively extensively the deputies' symptoms and treatment in the closing argument, urging the jury to "consider the nature, the extent, and the seriousness of the injury." The joint focus on Fregoso's symptoms and treatment demonstrates that the error was prejudicial. (See People v. Neidinger (2006) 40 Cal.4th 67, 79 [finding prejudicial error where "the error 'went to the heart of the case against defendant'"].)
Moreover, the jury could not reach a verdict on the allegation that Rauda engaged in violent behavior against Fregoso that indicated a serious danger to society, which demonstrates the jury "showed a readiness to scrutinize the evidence . . . and convict on lesser charges than the prosecutor requested." (People v. Brown (2016) 245 Cal.App.4th 140, 155.) The jury viewed relatively clear and unambiguous video footage of Rauda striking both deputies during the prosecutor's opening and closing statements, as well as during the testimony of Fregoso, Nunez, and two deputies who testified as witnesses. The jurors had the videos during deliberation in case they wanted to view them again. The jury also saw a color photograph of Fregoso's wrist with the brace.
The jury deliberated for over an hour before sending out a note asking, "Do we need to be unanimous in determining if defendant is a danger to society?" Again the jury deliberated for over an hour before sending out a second note asking, "What happens if [the] jury can agree on a verdict but cannot agree if defendant is a danger to society?" These questions demonstrate the jury's "readiness to scrutinize the evidence, draw its own independent conclusions of [Rauda's] level of culpability," and reject portions of the prosecution's case. (People v. Brown, supra, 245 Cal.App.4th at p. 155; see also People v. Rodriguez, supra, 26 Cal.App.5th at p. 902 [failure to instruct prejudicial in part because jury could have reasonably believed or disbelieved witnesses' testimony]; People v. Mullendore (2014) 230 Cal.App.4th 848, 857 [failure to instruct on a lesser included offense prejudicial "[b]ecause the jury had doubts concerning defendant's use of (or ability to apply) force likely to produce great bodily injury," so there was "a reasonable probability it also had doubts about whether defendant had the intent to inflict such injury"]; cf. People v. Sakarias (2000) 22 Cal.4th 596, 621 [failure to instruct the jury regarding a lesser included offense was harmless when the evidence in support of that offense "was, at best, extremely weak" and jury found the alleged special circumstance to be true].)
Although the injury to Nunez's neck (a bleeding puncture wound) was arguably more serious than the injury to Fregoso's wrist, both received similar medical treatment-visiting a physician at Healthworks who gave each deputy pain medication and an ice pack or heating pad. Yet the jury found the special allegation true only for the incident involving Nunez. Thus, there is an inference that the jury believed that the injury in count 1 was less serious than the injury in count 2. This further supports that failing to instruct on the lesser included offense for count 1 was prejudicial.
Because of Rauda's counsel's emphasis on Fregoso's injuries and treatment and the jury's inability to reach a verdict on the aggravating factor, it is "reasonably probable" that Rauda could have obtained "a more favorable outcome if the jury had not been presented with an unwarranted all-or-nothing choice between conviction of the charged offense and complete acquittal." (Hayes, supra, 142 Cal.App.4th at p. 183; see also People v. Castro (2006) 138 Cal.App.4th 137, 144 ["The facts are sufficiently ambiguous that a conviction for [the misdemeanor charge] might also have been justified .... Thus we cannot say that the instructional error in this case is harmless"].)
Rauda's conviction on count 1 for felony battery on a peace officer cannot stand because of the instructional error. It does not necessarily follow, however, that the judgment must be unconditionally reversed. Rather, the record shows, and Rauda does not dispute, that sufficient evidence supports his conviction on count 1 for misdemeanor battery on a peace officer. (§ 243, subd. (b); see People v. Edwards (1985) 39 Cal.3d 107, 118 [finding sufficient evidence to support lesser crimes in remanding for the People to either retry the defendant on the greater charges or accept convictions for the lesser included offenses].)
Under such circumstances, the prosecution has the option to retry Rauda or to accept modification of the judgment to reflect a conviction for the lesser included offense. (People v. Kelly (1992) 1 Cal.4th 495, 528 ["When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense"].)
On remand, the People will have the option to retry Rauda on count 1 for felony battery on a peace officer. (§ 243, subd. (c)(2).) If the People do not elect to retry Rauda, the judgment will be modified to reflect a conviction on count 1 under the lesser included offense of misdemeanor battery on a peace officer. (§ 243, subd. (b).)
DISPOSITION
Rauda's conviction on count 1 for felony battery on a peace officer (§ 243, subd. (c)(2)) is reversed. If, after the filing of the remittitur in the trial court, the People do not retry Rauda on count 1 within the time limit set forth in section 1382, subdivision (a)(2)-60 days unless waived by the defendant-the trial court shall treat the remittitur as a modification of the judgment as to count 1 to reflect a conviction of misdemeanor battery on a peace officer (§ 243, subd. (b)) and resentence Rauda accordingly. (People v. Woods (1992) 8 Cal.App.4th 1570, 1596.) In all other respects, the judgment is affirmed.
This will be a full resentencing on all counts. (See People v. Navarro (2007) 40 Cal.4th 668, 681.)
We concur: SEGAL, Acting P. J. MARTINEZ, J.
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice under article VI, section 6 of the California Constitution.