Opinion
C098621
08-02-2024
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW STEVEN CARPENTER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 20FE016415)
DUARTE, J.
A jury found defendant Mathew Steven Carpenter guilty of assault with force likely to produce great bodily injury. On appeal defendant contends the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of simple assault. He contends, in the alternative, defense counsel provided ineffective assistance by failing to object to the trial court's failure to give the instruction. Disagreeing, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with one count of assault by means likely to cause great bodily injury (Pen. Code, § 245) and robbery (§ 211). As to the assault charge, the information alleged a great bodily injury enhancement. (§ 12022.7, subd. (a).) The information further alleged five aggravating circumstances.
Further undesignated statutory references are to the Penal Code.
The Prosecution Case
The victim, R.S., saw defendant dumping concrete from a trailer connected to a pickup truck into an open field area. R.S. pulled her car over directly in front of defendant's truck and began filming him. She intended to get his license plate number and report him for illegal dumping. R.S. noticed defendant did not have a front license plate, so she moved her car to the side of the road and waited for defendant to leave the area so she could get his license information from the rear plate. Defendant and R.S. made eye contact and defendant continued dumping concrete. When defendant finished, he "flipped off" R.S. before getting in his truck and leaving. R.S. followed defendant in her car, writing down defendant's license plate information.
To protect their privacy, we refer to the victim and witnesses by their initials. (Cal. Rules of Court, rule 8.90(b)(4), (10).)
After traveling a "[c]ouple hundred yards" defendant blocked the road with his truck and trailer so that R.S. could not pass. Defendant then "got out of his truck, grabbed a trailer hitch," and asked R.S., "Do you want to fuck with me?" He approached the driver's side of R.S.'s car and again asked, "[d]o you want to fuck with me?" R.S. replied, "no," and explained she was going to report him for illegal dumping.
Defendant walked around R.S.'s car and temporarily disappeared into a ditch before he "popped up" on the passenger side, reached into the car, unlocked the door, got into the car, and attempted to take R.S.'s car keys and phone. While attempting to take the keys from the ignition, defendant grabbed R.S.'s right arm and twisted, which caused her skin to tear. Defendant took the keys out of the ignition, took R.S.'s phone, left the car, and threw the phone inside his trailer.
R.S. got out of her car and jumped into the trailer to get her keys and phone back. Defendant followed R.S. into the trailer and moved toward R.S. "like a bulldog." R.S. backed away from defendant and lay down on her back to use her feet defensively because she was afraid defendant was going to hurt her. Defendant grabbed R.S. by the clothes, raised her to his chest or face level, and threw R.S. out of the trailer with "a move that a wrestler would make." The trailer walls were approximately two feet high. The distance from the top of the trailer walls, from where defendant threw R.S., to the ditch where she landed was approximately six to eight feet. At the time, defendant weighed 230 pounds and was six feet tall, R.S. weighed approximately 150 pounds and was five feet one inch tall.
Two witnesses, B.P. and A.H., saw R.S. and defendant in the trailer. They both saw defendant grab R.S. and throw her like a wrestler, body slamming an opponent. R.S. suffered a collapsed lung as well as cuts on her left arm and face from the fall into the ditch. She was hospitalized for three days and required the insertion of a chest tube to inflate her collapsed lung, which left scarring on her chest.
Defendant's Case
After taking R.S.'s car keys and telephone, defendant threw the car keys on the ground near R.S.'s car, told R.S. to "[s]top following [him]," and walked back to his truck. As defendant began to drive away, he noticed R.S. in the back of the trailer and stopped his truck. Defendant got out and asked R.S., "What are you doing?" She replied, "[Y]ou took my keys." He denied taking her keys.
Defendant climbed onto the tongue of the trailer and told R.S. several times he did not have her phone or keys and told her, "Get out of my trailer, Karen." Defendant testified R.S. threw a chunk of concrete at him, then picked up a trailer hitch, and hit him in the arm. After being hit, defendant turned away. He heard a thud but was not sure if R.S. fell or jumped out of the trailer.
Defendant testified the victim swung a trailer hitch at him, breaking his arm. R.S. denied picking up the trailer hitch or swinging it at defendant. There is no physical evidence the victim broke defendant's arm. Defense counsel elected not to submit an X-ray provided by defendant because "the treating chiropractor could not determine the date of the injury."
Defendant then got back into his truck and left the scene. At trial, defendant testified he "never made any physical contact with [R.S.]," when asked by the prosecutor if he "ever hit or otherwise assault[ed]" R.S. Defendant specifically confirmed he did not touch R.S. when she fell out of the trailer and that any witness who testified they saw him throw R.S. out of the trailer was wrong. Although defendant initially denied taking R.S.'s phone, he subsequently testified he found it in the trailer later that day. Defendant took the cell phone from the trailer, got back into his truck, and threw it out of his truck while driving.
Jury Instructions
Near the end of the prosecution's case, the trial court discussed jury instructions with the parties. Initially, the proposed jury instructions contained an instruction on simple assault. The trial court indicated it did not think it had a duty to instruct the jury on the lesser included offense of simple assault, based on the facts of the case, and the prosecution agreed. Defense counsel responded: "I don't believe his testimony is going to encompass removing her [from the trailer]. I think he is going to [say] . . . that she tripped or somehow fell out of the trailer when she was hitting him." The prosecutor confirmed to the trial court it was arguing "the toss over the rail" of the trailer constituted the assault with force likely to cause great bodily injury and specifically stated, "I am not arguing any sort of assault for what happened in the car."
The trial court responded: "In my judgment, if . . . that's all that you're asserting, then there is not a [section] 240 lesser, because if he throws her from . . . the trailer as she said, that strikes me as res ipsa [section] 245. It just is. How do you get from that to a simple [section 240]? I don't know, but I am open to being persuaded if [counsel] feel[s] otherwise." Over the weekend, the trial court sent both counsel the following e-mail: "I do not think a simple assault lesser is warranted on the present record. Please weigh in if you have a different view." Neither counsel responded to the jury instruction issue raised in the trial court's e-mail.
After both parties rested, the trial court again raised the issue of whether the parties wanted to include a jury instruction on the lesser included offense of simple assault, stating, "based on [defendant's] testimony, as well as the remainder of the record, I don't think there is a basis for a lesser as to the [assault with force likely to cause great bodily injury] count." The trial court again confirmed the prosecution only argued an assault occurred in the trailer, not in the car, and declined to give the jury instruction. Neither party objected. The jury was only instructed on the charged offense of assault with force likely to cause great bodily injury. (CALCRIM No. 875.)
Verdict and Sentence
The jury found defendant guilty of assault by means likely to cause great bodily injury and found to be true the allegation defendant inflicted great bodily injury. The jury also found one circumstance in aggravation to be true. The trial court sentenced defendant to the upper term of four years plus three years for the great bodily injury enhancement.
Defendant appealed. DISCUSSION
Defendant claims the trial court erred because it had a duty to sua sponte instruct the jury on simple assault (§ 240) as it is a lesser included offense of assault by means likely to produce great bodily harm (§ 245). Defendant denies he assaulted R.S. but concedes the assault at issue "involved a single act of [defendant] throwing [R.S.]" out of the trailer. He specifically argues "the amount of force used was not an amount of force likely to cause great bodily harm." The People argue the trial court did not have a duty to instruct the jury on simple assault because the evidence does not support a conviction for simple assault. We agree with the People.
Defendant also preemptively asserts an ineffective assistance of counsel argument in anticipation of this court concluding his claim of error is forfeited. The People decline to argue forfeiture. We will analyze the substantive claim on its merits and thus need not address the ineffective assistance of counsel claim.
Defendant does not argue there is substantial evidence of any other assaultive conduct, other than the disputed "throw," which he argues could constitute a simple assault. We accept defendant's undisputed contention that "[t]he [alleged] assault here, as testified by [R.S.], involved a single act of [defendant] throwing [R.S]." We thus narrow the scope of our discussion to the briefed issue of whether substantial evidence exists to show defendant committed the lesser offense of simple assault during the alleged "throw" from the trailer.
We review a claim of instructional error de novo, considering the evidence in the light most favorable to the defendant. (People v. Campbell (2020) 51 Cal.App.5th 463, 501.) Simple assault is a lesser included offense of assault by means likely to produce great bodily injury. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
It is the trial court's duty to instruct the jury on both the charged crime and lesser included offenses, regardless of whether a defendant so requests, when "substantial evidence rais[es] a question as to whether all of the elements of the charged offense are present." (People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Halvorsen (2007) 42 Cal.4th 379, 414.)"' "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense ...." [Citation.] Rather, substantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense. [Citation.] '" 'Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." '" '" (People v. Westerfield (2019) 6 Cal.5th 632, 718.) The trial court "may refuse to instruct upon simple assault where the evidence makes clear that if the defendant is guilty at all, he is guilty of the greater offense of assault by means likely to produce great bodily injury." (People v. Wyatt (2012) 55 Cal.4th 694, 704, citing People v. Berry (1976) 18 Cal.3d 509, 519.)
"An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another." (§ 240.) Assault with force likely to produce great bodily injury, the greater offense, is an assault executed with force capable of causing "significant or substantial injury." (§ 245; People v. Brown (2012) 210 Cal.App.4th 1, 7.) "Great bodily injury is bodily injury [that] is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) "Thus, the question posed [on appeal] is whether a reasonable jury could have found that defendant committed only a simple assault and not an assault with . . . force likely to produce great bodily injury." (People v. McDaniel, supra, 159 Cal.App.4th at p. 748, italics added.)
The parties agree the charged assaultive conduct consisted of defendant throwing R.S. out of the trailer, into a ditch eight feet away, thereby causing her to suffer serious injuries. Although defendant argues that the amount of force used to do so was not necessarily an amount of force likely to cause great bodily injury, we disagree. Assuming the truth of any and all evidence supporting the conclusion that the charged assault was simple assault, here that lesser charge is not supported. Defendant's testimony does not support a conclusion he committed a simple assault. Defendant unequivocally testified he did not assault R.S., but that R.S. swung a trailer hitch that hit him causing her to jump or fall out of the trailer. The evidence was either she fell on her own or that defendant threw her out of the trailer. Had the jury accepted defendant's testimony, it could only have properly concluded that defendant did not assault R.S. at all.
Viewing the evidence in the light most favorable to defendant, a reasonable jury could not properly have found defendant only committed the lesser offense of simple assault and not the greater offense. (People v. Berry, supra, 18 Cal.3d at p. 519; People v. Yeats (1977) 66 Cal.App.3d 874, 879 ["the trial court may properly refuse to instruct upon simple assault" "where the defense, as here, is that the defendant did not commit the assault"].) Accordingly, we conclude the trial court did not err in declining to instruct the jury on the lesser included offense of simple assault.
DISPOSITION
The judgment is affirmed.
We concur: Robie, Acting P. J, J. Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.