Opinion
A164259
03-01-2022
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. ROBERT CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Kern County Super. Ct. No. LF011825A
PETROU, J.
A jury found defendant Robert Chavez guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1).) On appeal, Chavez argues: (1) there was insufficient evidence to support his conviction; (2) the trial court committed multiple instructional errors; and (3) the fines and assessments imposed on him must be stayed or reversed. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
One evening in February 2018, then 19-year-old Cynthia F. was walking home alone along Kern Street in Taft, California. Cynthia was about three blocks from where she lived, on the same route she had taken twice a day for the previous 18 months. As she walked by the house at 521 Kern Street, she heard arguing. She saw a man-later identified as Chavez- standing in the house's open doorway atop a flight of steps, and overhead him say that "he was gonna find someone," or something along those lines.
We refer to the victim by her first name and last name initial to protect her privacy interests. (Cal. Rules of Court, rule 8.90(b).)
After Cynthia passed the house, Chavez walked down the steps and made his way towards her. He called out, "Hey," to get her attention. He sounded angry and his voice was stern and loud. Cynthia turned around to look but did not recognize him so continued walking. At this point, she was on guard because she was alone, did not know the man, and had nothing to defend herself with. Chavez again called out to her in the same angry tone. This time when Cynthia turned around, she saw he was closer to her so she picked up her pace. When she looked back again, she saw him reach behind him to pull something out and so picked up her pace even more. Chavez, too, walked faster. Cynthia felt scared and sensed him getting closer. When she next turned, he was holding a big knife or machete up in the air. The blade was "really big," about a couple feet in length. With Chavez about seven to eight feet away, she registered that this man could hurt her, possibly kill her, and she took off running. Chavez pursued her and Cynthia continued to run. When she looked back again, he was no longer there.
Shortly thereafter, Cynthia called 911. Cynthia reported a man wearing a white t-shirt and black shorts came running towards her and tried to come at her with a "big ass machete." Multiple officers responded to the 911 call. Officer Gomez met Cynthia on the corner of 4th and Kern Streets, about a block from where she had been chased. Cynthia had no injuries but was out of breath and seemed scared and startled.
Meanwhile, Officer McClure and his partner encountered Chavez at 521 Kern Street. They saw Chavez come out of the house's side yard. With hands deep in his pockets, Chavez walked towards the front yard, making noises and incoherent statements as he approached the officers. The officers announced they were police and ordered Chavez to remove his hands from his pockets but he kept them there. After they drew their weapons and repeated their commands to stop and put his hands above his head, he complied and was detained. While cuffing Chavez, Officer McClure smelled an "obvious odor" of alcohol and noted his eyes were red and watery and his speech incoherent. Officer Gomez drove Cynthia to the location where Chavez was being detained. In an in-field lineup, she identified Chavez as the man who chased her with a knife.
In searching the yard of 521 Kern Street, Office McClure found in a corner an approximately 23-inch-long machete and an approximately 13-inch long knife. Inside the house, he saw a 40-ounce bottle of beer that was three-quarters empty. No one else was in the house.
Officer Gomez questioned Chavez at the city jail. He, too, smelled alcohol on Chavez and noted his slightly slurred speech and red watery eyes. Chavez would not answer questions about what happened. However, he twice stated that he was protecting his house or property and that he was sorry. As Officer Gomez continued to ask questions, Chavez became belligerent and yelled loudly. He did not say from what or whom he was protecting his house. Nor did Chavez ever say that he felt threatened or unsafe.
In his defense, Chavez recalled Officer Gomez, who testified more about his meeting with Cynthia upon responding to the 911 call. Cynthia told him the first time she saw Chavez was when he called out from behind and told her to stop. She explained that she ignored Chavez, continued to walk, and upon looking back saw he had a large knife over his head. At that point, she ran. Chavez gave chase for a short period but stopped. She did not mention to Officer Gomez that she heard people arguing or first saw Chavez in the doorway of 521 Kern Street.
The jury convicted Chavez of assault with a deadly weapon, and the trial court sentenced him to four years in state prison. This appeal followed.
This matter was transferred by California Supreme Court Order on December 20, 2021, from the Fifth Appellate District (where it had been designated Case No. F078610) to the First Appellate District.
Discussion
A. Substantial Evidence
Chavez contends there was insufficient evidence to support his conviction for assault with a deadly weapon. We disagree.
Simple assault is an unlawful attempt, combined with the present ability, to commit a violent injury on another. (§ 240.) Assault with a deadly weapon requires the defendant to use" 'any object, instrument, or weapon which is . . . capable of producing and likely to produce death or great bodily injury.'" (§ 245, subd. (a)(1); People v. Aguilar (1997) 16 Cal.4th 1023, 1028- 1029.) "Because the statute speaks to the capability of inflicting significant injury, neither physical contact nor actual injury is required to support a conviction." (People v. Brown (2012) 210 Cal.App.4th 1, 7.)
To prove the crime of assault with a deadly weapon, the prosecution must establish: (1) the defendant acted with a deadly weapon that by its nature would directly and probably result in the application of force to a person; (2) the defendant did the act willfully; (3) when he or she did so, the defendant was aware of facts that would lead a reasonable person to realize his or her act would result in the application of force to someone; and (4) the defendant had the present ability to apply force with the deadly weapon. (§§ 240, 245, subd. (a)(1); People v. Golde (2008) 163 Cal.App.4th 101, 121- 123.).
"In reviewing a sufficiency of the evidence claim, our role is limited. We review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt. [Citations.] We draw all reasonable inferences in favor of the judgment." (People v. Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, viewing the evidence most favorably to the judgment, we conclude there was substantial evidence for the jury to convict Chavez of assault with a deadly weapon. There was sufficient evidence that Chavez acted with a deadly weapon: the knife or machete he held over his head while pursuing Cynthia. (See People v. McCoy (1944) 25 Cal.2d 177, 188-189 [knife may assume characteristics of a dangerous or deadly instrument depending on the manner used].) There was sufficient evidence that Chavez acted willfully and with actual knowledge of facts that would lead a reasonable person to believe the natural and probable consequences of his actions would result in injury to another. He angrily called out to Cynthia twice to get her attention after she passed his house. When she continued to walk away from him, he followed her. While following her, he pulled out a large knife or machete and held it above his head. When she began to run, so did Chavez, keeping within seven or eight feet of her for at least some period of time. On these facts, the jury could reasonably find that Chavez's conduct was willful and that he knew the natural and probable consequence of closely chasing her with a raised weapon would be injury to Cynthia. Lastly, there was also sufficient evidence that Chavez had the present ability to apply force with a deadly weapon to Cynthia. Present ability means a defendant "must have maneuvered himself into such a location and equipped himself with sufficient means that he appears to be able to strike immediately at his intended victim." (People v. Valdez (1985) 175 Cal.App.3d 103, 112.) The jury could reasonably determine Chavez had such present ability once he drew the knife or machete and raised it while only steps behind Cynthia.
Citing People v. Rocha (1971) 3 Cal.3d 893, Chavez notes that assault with a deadly weapon requires the general intent to willfully commit an act the direct, natural, and probable consequence of which if successfully completed would be the injury of another. He argues that merely holding a knife high above one's head is not sufficient to demonstrate such intent, nor can such intent be inferred from such conduct. Here, Chavez did much more than simply hold a knife above his head. He called out to her angrily, followed her when she ignored him, and pulled out the machete or knife high above his head while chasing her. That he never swung his weapon at Cynthia is irrelevant since he had the "present ability" to do so from seven to eight feet away. (See People v. Nguyen (2017) 12 Cal.App.5th 44, 48-49 [" '[W]hen a defendant equips and positions himself to carry out a battery, he has the "present ability" required . . . if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.' "].) Thus, there was sufficient evidence for the jury to find that Chavez had the general intent to support his conviction.
B. Instructional Errors
Chavez argues there were three instructional errors. We review each of these claims de novo (In re Loza (2018) 27 Cal.App.5th 797, 800), and discuss each one in turn.
1. Instruction on Lesser Included Offense
At the conclusion of the evidence, Chavez requested the trial court instruct the jury on simple assault. The trial court properly denied the request indicating that it did not believe there was any evidence "to support a finding by the jury that this was an assault committed by something that was not a deadly weapon."
" '[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1008 (Cunningham).) "Thus, 'a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.'" (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).) However, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (Cunningham, supra, 25 Cal.4th at p. 1008; Smith, supra, 57 Cal.4th at p. 240 [" '[T]he court is not obliged to instruct on theories that have no such evidentiary support.' "].)
There is no dispute here that simple assault is a lesser included offense of assault with a deadly weapon. As noted above, "[s]ection 240 defines the crime of simple assault as 'an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.'" (People v. Wyatt (2012) 55 Cal.4th 694, 702.) In contrast, assault with a deadly weapon requires the use of a" 'deadly weapon, '" which is" 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'" (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.)
The question posed by Chavez's claim is whether a reasonable jury could have found that he committed only a simple assault and not an assault with a deadly or dangerous weapon or force likely to produce great bodily injury. No evidence at trial supported that conclusion. Cynthia testified that, while following closely behind her, Chavez pulled out a large knife or machete and raised it over his head. Given Chavez's actions, it is not possible for him to have assaulted her without a deadly weapon. There is simply no evidence to support that theory. Accordingly, there were no grounds for instructing the jury on simple assault, and the trial court properly denied Chavez's request for an instruction on simple assault.
Chavez contends that the record showed only that he brandished the knife and that the manner in which he held or used the knife was an issue for the jury. Not so. As discussed above, the evidence demonstrated Chavez did more than merely brandish a weapon and that his conduct was not just simple assault. He called out to Cynthia angrily, followed her when she ignored him, and pulled out the machete or knife high above his head while chasing her. Based on this evidence, the court did not err in declining to instruct on simple assault.
2. Instruction on Self-Defense
After the trial court denied Chavez's request for the simple assault instruction, he requested a jury instruction with paragraph 5 of CALCRIM No. 875 [Assault with a Deadly Weapon], which would have advised the jury they could only convict appellant if they found he did not act in self-defense. As the trial court found Chavez's statement to Officer Gomez that he was trying to protect his home did not provide sufficient evidence to establish the defense, it denied the request. Chavez argues this was error. We disagree.
"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 U.S. 58, 63.) Self-defense can be a defense to assault with a deadly weapon. (CALCRIM No. 875.) To justify the use of self-defense for an assault charge," 'the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him.'" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) The threat of harm must be imminent and use of force must be reasonable under the circumstances. (Id. at p. 1065 [whether a defendant acted in self-defense "is determined from the point of view of a reasonable person in the defendant's position"]; see also People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 [defendant's belief in the need to act in self-defense must be objectively reasonable].)
We see no error in the trial court's refusal to instruct on self-defense. There was no evidence that Chavez was threatened with bodily injury by anyone. The only evidence of Chavez's need to protect himself was his own self-serving statement he made to Officer Gomez that he was trying to protect his home, which he made at the police station while in custody and exhibiting signs of intoxication. In addition, there was no evidence that Cynthia threatened or provoked Chavez. She simply walked by Chavez's house on the way home. Absent any evidence of any imminent danger to Chavez, the court properly declined to give this instruction.
Chavez contends there was evidence that supported the self-defense instruction, including Cynthia's testimony that she heard arguing from his home, his upset and belligerent demeanor when meeting the officers, as well as his statements that he was defending his home "presumably from whatever disturbance was in progress when [Cynthia] walked past." This was not substantial evidence to support the requested instruction. "[S]ubstantial evidence does not mean any evidence, no matter how slight." (People v. Baker (2012) 204 Cal.App.4th 1234, 1247.) Evidence is "[s]ubstantial" if it is "sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) In light of the entire record, Chavez's cherry-picked evidence was insufficient to show Chavez's belief he needed to act in self-defense was objectively reasonable. When Chavez's house was searched, no one was there, and there was no evidence anyone had been there earlier endangering him. When he met with the officers, he smelled of alcohol, and they found a near empty beer bottle in his house. The jury could reasonably infer his belligerent demeanor was the result of intoxication, not fear of harm. Chavez's own statements of his need to protect his house were given after his arrest at the jailhouse while still exhibiting signs of intoxication and refusing to answer questions about the evening's events. The evidence did not support an objectively reasonable belief that Chavez needed to defend himself against any imminent harm and the trial court properly declined to instruct the jury on self-defense.
3. Instruction on Defense of Property
Chavez also argues the trial court erred by failing to sua sponte instruct the jury with CALCRIM 3476 [Defense of Property], which would have advised the jurors that they could only convict Chavez if they found he used more force than was reasonable to protect property from imminent harm. Again, we disagree.
A trial court has a sua sponte duty to instruct on a defense the defendant is relying on, or if there is substantial evidence that supports the defense and it is not inconsistent with the defendant's theory of the case. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) The trial court also has a" 'duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place.'" (People v. Williams (2018) 26 Cal.App.5th 71, 90, fn 5.)
Here, there was no such substantial evidence requiring the trial court to sua sponte provide the defense of property instruction. Chavez could not have reasonably believed he needed to protect his home against Cynthia, who simply walked by the house on a public sidewalk on her way home. Cynthia's actions did not constitute a reasonable threat to Chavez's property. There was no other evidence that his house or property was in danger of imminent harm. Because there was no substantial evidence supporting the defense of property instruction, the trial court had no duty to provide it.
Chavez says that he twice told police he was protecting his home and was upset and belligerent when he made contact with the officers. He also notes that Cynthia referred to arguing coming from the house when she walked past. On this evidence, he contends the jury should have been tasked with determining whether he was credible and reasonable in his statements that he needed to protect his home. Again, in light of the whole record this did not constitute substantial evidence for the instruction. When Chavez contacted officers, his hands were in his pockets, not the posture of a person under threat. Further, no one was in his house when it was searched, and there was no evidence anyone had been there earlier. Chavez's statements that he was protecting his house were self-serving and given at the jailhouse while intoxicated. None of the evidence supported a reasonable belief that Chavez needed to protect his house or property from any imminent harm.
Chavez also argues that if the court had no sua sponte duty to provide the defense of property instruction, his counsel provided ineffective assistance of counsel for failing to request the instruction. Not so. For an ineffective assistance of counsel claim, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Since there was no substantial evidence that would have supported an instruction on defense of property, it was entirely reasonable for counsel to not seek such an instruction lacking the necessary evidentiary support. Chavez cannot show his trial counsel's performance was deficient.
In sum, we reject all Chavez's claims of instructional error. Thus, we need not address his arguments that he was prejudiced by such errors.
C. Imposition of Fines and Assessments
Finally, Chavez contends the fines and assessments imposed on him must be stricken or at least stayed because the trial court disregarded evidence of his inability to pay.
At sentencing, the trial court ordered Chavez to pay a $300 restitution fine pursuant to section 1202.4, subdivision (b); a $300 revocation fine pursuant to section 1202.45 ; a $40 court operations assessment pursuant to section 1465.8 ; and a $30 court conviction assessment pursuant to Government Code section 70373.
Section 1202.4, subdivision (b) states in part that "[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).)
Section 1202.45 states in part: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).)
Section 1465.8 states in part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense." (§ 1465.8, subd. (a)(1).)
Government Code section 70373 states in part: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense." (Gov. Code, § 70373, subd. (a)(1).)
Chavez relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) for his argument that these fines and assessments should be stricken or stayed. In Dueñas, the defendant-an indigent and homeless mother of young children who suffered from cerebral palsy, dropped out of high school due to her illness, was not working, received public assistance, and had been unable to pay prior citations and fees-was convicted of driving with a suspended license. (Id. at pp. 1160-1163.) At sentencing, she argued she did not have the ability to pay fees and fines, produced evidence of her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The appellate court concluded "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373" and that while "Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Id. at p. 1164.) The trial court struck the court operations assessment under section 1465.8 and Government Code section 70373 and stayed the section 1202.4 restitution fine until the defendant's ability to pay was proven. (Id. at pp. 1172-1173.)
Several decisions have disagreed with Dueñas, and the California Supreme Court is currently considering the issue. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
Even assuming the fines and assessments were erroneous under Dueñas, we would nonetheless conclude such errors were harmless beyond a reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.) Nothing in the record indicates that Chavez, like the defendant in Dueñas, has a history of being unable to pay court assessments, has limited assets or income, or has a disability that prevents him from working in the future. In fact, Chavez's post-conviction motion to reduce his charged crime to a misdemeanor made several references indicating prior work and his ongoing ability to work, despite an injury to his finger for which he was receiving worker's compensation. He stated that before his arrest for this case, he was gainfully employed working in field maintenance. He also expressed his desire to avoid further time in custody so he can return to work, or for a referral to a work release program as an alternative sentence. Chavez's probation report also found that he had the ability to reimburse costs for probation supervision, even if he did not have the ability to reimburse probation costs for the presentence investigation report. It stated that Chavez "is employable and should be held accountable for such fees."
Moreover, a defendant's ability to pay is not limited to his or her present financial situation but can also be based on his or her future ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Staley (1992) 10 Cal.App.4th 782, 785.) At the time of sentencing, Chavez was 37 years old and confronting a four-year prison term. Maximum monthly wages for prison inmates range from $12 to $56, and the California Department of Corrections and Rehabilitation will deduct up to half of those wages to pay any outstanding restitution fines. (§ 2085.5, subd. (a); Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) As noted above, there is no indication Chavez will be unable to work or ineligible for work assignments in prison. He has had and will have the capacity to earn during his sentence.
Disposition
The judgment is affirmed.
WE CONCUR: Fujisaki, Acting P.J., Rodríguez, J.