Opinion
B317363
03-10-2022
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW MICHAEL GEORGE, Defendant and Appellant.
Law Office of Robert D. Coppola, Jr., and Robert D. Coppola, Jr., for Defendant and Appellant. George Gascon, District Attorney, Grace Shin and Cassandra Thorp, Deputy District Attorneys, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles Superior Court No. LA089386, Thomas Rubinson, Judge. Affirmed.
Law Office of Robert D. Coppola, Jr., and Robert D. Coppola, Jr., for Defendant and Appellant.
George Gascon, District Attorney, Grace Shin and Cassandra Thorp, Deputy District Attorneys, for Plaintiff and Respondent.
HOFFSTADT, J.
Matthew Michael George (defendant) challenges his misdemeanor conviction for simple assault (Pen. Code, § 240).Some of his challenges are frivolous; all of them are meritless. We accordingly affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
Consistent with the applicable standard of review, we have construed the facts in the light most favorable to defendant.
On October 12, 2018, Manuel Cruz Quintanilla (Cruz) was waiting in his car as his wife ran in to pick up Chinese take out. Defendant, who is Caucasian, came up behind Cruz's car and started kicking the tires. Defendant then walked up to the front of the car and said, "Fuck you." Cruz got out of the car and asked defendant, "What's your problem?" Defendant then repeated, "Fuck you," and made a reference to Cruz's Latinx heritage. Cruz approached defendant and again asked, "What's your problem?" Defendant then got into a "fighting stance" and punched Cruz in the face with his fist. Cruz tried to back away, "tripped over a wire" on the sidewalk and fell backwards onto his back. Defendant jumped atop Cruz, and started to punch at Cruz's face with his fists. Cruz used his arms and hands to block defendant's blows; at least three of them landed. When Cruz's wife returned and saw the melee, she started screaming at defendant. Defendant stopped, stood up, told Cruz's wife, "Fuck you," called her a "bitch" and walked away. The entire encounter-from the first tire kick to defendant's departure-lasted six or seven minutes.
Defendant's punches bruised Cruz's left eye to the extent that it was swollen shut and caused two effectively hairline fractures in the "thin" and "fragile" bones that form the bottom of his eye socket. Although Cruz was in pain, he told his wife he felt "fine" and declined an ambulance when the 911 operator offered one. Instead, Cruz's wife drove him to the hospital where he was given pain medication and a preemptive antibiotic, told to take Motrin and apply ice, and to follow up with an eye doctor. Cruz reported "zero" pain when he left the hospital. The eye doctor subsequently gave him eye drops to lubricate his left eye. The swelling went down within four to six weeks, and Cruz suffered no permanent damage to his vision and no cosmetic damage.
II. Procedural Background
On April 16, 2019, the People charged defendant in an information with assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), and further alleged that defendant had inflicted great bodily injury upon Cruz (§ 12022.7, subd. (a)). On July 3, 2019, the People filed an amended information alleging the same crime.
The People also alleged that defendant committed the crimes of assault by means of force likely to inflict great bodily injury and making criminal threats against a different person (Paul Lewin), but defendant was acquitted of those crimes and they are not at issue in this appeal.
The matter proceeded to a jury trial in February 2020, and the jury was unable to reach a verdict.
The matter proceeded to a second jury trial in November and December 2020. Over the objection of the People and defendant, the trial court instructed the jury on the misdemeanor crime of simple assault (§ 240) as a lesser-included offense.
The jury acquitted defendant of assault by means of force likely to product great bodily injury, but convicted him of the lesser-included crime of simple assault.
In January 2021, the trial court placed defendant on summary probation for 12 months, which included 8 days in the county jail (which defendant had already served), 15 days of community service, an order to stay away from Cruz, and $220 in assessments and fines.
Defendant filed this timely appeal.
DISCUSSION
On appeal, defendant argues that he is entitled to an acquittal because (1) the trial court erred in instructing the jury on the lesser-included offense of simple assault, and (2) the statute of limitations on misdemeanor simple assault expired before the People commenced prosecution. These arguments lack merit.
I. Lesser-Included Offense
A trial court has a duty to instruct the jury on a crime that constitutes a lesser-included offense to a charged crime if the record contains substantial evidence that would enable a rational jury to find that "'the defendant committed the lesser[-included, uncharged] offense, '" but not the greater, charged offense. (People v. Whalen (2013) 56 Cal.4th 1, 68; People v. Wyatt (2012) 55 Cal.4th 694, 702-704; cf. People v. Berry (1976) 18 Cal.3d 509, 519 [no duty to instruct "where the evidence is clear that if the defendant is guilty at all, he is guilty of the higher offense"], superseded on other grounds as stated in People v. Spurlin (1984) 156 Cal.App.3d 119, 125.) This is a duty the trial court must discharge even without a request by the parties-and even over the parties' objections. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747 (McDaniel); People v. Medellin (2020) 45 Cal.App.5th 519, 526 & fn. 5 (Medellin).) The reason for this is simple, as our Supreme Court has explained: "Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser-included offense." (People v. Breverman (1998) 19 Cal.4th 142, 155; People v. Lipscomb (1993) 17 Cal.App.4th 564, 571 [purpose of this duty is to ""'eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice'""].) We independently review the substantiality of the evidence for these purposes, and do so by viewing it 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 did not err in instructing the jury on the lesser-included offense of simple assault because, viewed in the light most favorable to defendant, there was substantial evidence upon which a rational jury could find that defendant committed simple assault rather than assault by means likely to produce great bodily injury. There is no question that simple assault is a lesser-included offense to the crime of assault by means of force likely to produce great bodily injury. (People v. Rupert (1971) 20 Cal.App.3d 961, 968.) What distinguishes the two crimes is whether the force actually used by the defendant was likely to produce great bodily injury. (Medellin, supra, 45 Cal.App.5th at p. 527; compare CALCRIM No. 875 [instruction for assault by means of force likely to produce great bodily injury] with CALCRIM No. 915 [instruction for simple assault].) Although the use of one's fists can be a means of force likely to produce great bodily injury (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; Medellin, supra, at p. 528; People v. James (1955) 133 Cal.App.2d 478, 479-480 [punches to victim's face causing loose teeth, a black eye, and bleeding about the face; likely to produce great bodily injury]; McDaniel, supra, 159 Cal.App.4th at p. 749 [punches to victim's face necessitating stitches and fracturing the defendant's knuckles; likely to produce great bodily injury]; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [shoving hand down victim's throat; likely to produce great bodily injury]), it is not inevitably so (People v. Roth (1964) 228 Cal.App.2d 522, 530-531 [punch to victim's face that caused a cut mouth and "some bruises"; simple assault instruction required]; People v. Richardson (1972) 23 Cal.App.3d 403, 405-406, 408 [punch to victim's back that caused victim to fall to the ground; simple assault instruction required]). Whether it is in any particular case turns on the force of the impact, the manner in which it was used, and the circumstances under which force was applied. (McDaniel, supra, 159 Cal.App.4th at pp. 748-749.) This is an issue typically for the jury. (People v. Score (1941) 48 Cal.App.2d 495, 498.)
Applying these factors, a jury could conclude that the force defendant used was not likely to produce great bodily injury (such that a reasonable jury could conclude that defendant only committed the crime of simple assault): Here, defendant certainly punched Cruz in the face, but a reasonable jury could conclude that the force used to do so was not likely to produce great bodily injury because that force produced only a black eye with the commonly associated fracture of the "fragile" orbital socket bones beneath that eye; what is more, Cruz indicated at the time that, although in pain, he was "fine"; his injuries did not require stitches; Cruz suffered no lasting injury whatsoever from the blows; and defendant's fists were not injured. (Accord, People v. Beasley (2003) 105 Cal.App.4th 1078, 1087-1088 [force causing bruising on arms and shoulders insufficient to constitute force likely to product great bodily injury].) This is also not a case where the defendant contested some other element of the crime, leaving the extent of injury-and hence the extent of force- unchallenged (see People v. Salas (1978) 77 Cal.App.3d 600, 607-608 [where defendant raises alibi defense but does not contest degree of force, lesser-included assault offense not warranted]; to the contrary, defendant here called an expert witness to opine about the minimal injury defendant inflicted upon Cruz. Because no case holds that a punch causing a black eye is always sufficient force to produce great bodily injury, because a jury could rationally find that this case involves nothing more, and because the issue of the extent of injury (and hence the extent of force) was hotly disputed, we reject defendant's argument that the trial court erred in instructing on the lesser-included offense of simple assault.
Defendant resists this conclusion with two further arguments. First, he argues that simple assault is not a lesser-included offense to the crime of assault with force likely to produce great bodily injury because the latter crime requires proof of an "assault," while the former crime requires proof of an "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (§ 240). This argument is frivolous because the language in section 240 is what defines "assault," and the crime of assault with force likely to produce great bodily injury merely uses the term "assault" instead of awkwardly repeating its full definition. Second, defendant argues that the trial court erred in not instructing the jury on the three factors (set forth above) relevant to determining whether a particular use of force is likely to produce great bodily injury- namely, (1) the force of the impact, (2) the manner in which it was used, and (3) the circumstances under which force was applied. This argument is forfeited because this additional language is a "pinpoint" instruction that defendant never requested. (People v. Wilkins (2013) 56 Cal.4th 333, 348-349.) More to the point, defendant could not have been prejudiced by the absence of this instruction because its function is to help the jury distinguish between the lesser crime of simple assault and more aggravated crime of assault by means of force likely to produce great bodily injury, but the jury here convicted defendant of the lesser crime. Giving this instruction thus could not have led to a different result more favorable to defendant. (Accord, People v. Earp (1999) 20 Cal.4th 826, 886-887 [absence of pinpoint instruction can be harmless].)
II. Statute of Limitations
As pertinent to the crime of simple assault, the People must "commence prosecution" of that misdemeanor-even if it is uncharged and arises only because the defendant is convicted of it as a lesser-included offense-within one year of the "commission of the offense." (§§ 802, subd. (a); 805, subd. (b).) A prosecution is "commenced" when an information regarding that offense is filed. (§ 804, subd. (a).) Here, the charged offense was committed on October 12, 2018, and the People filed an information on April 16, 2019, and again on July 13, 2019. Because the two informations alleged the same crime against defendant, the second "relates back" to the first. (People v. Ortega (2013) 218 Cal.App.4th 1418, 1429-1430.) Because April 2019 (or, for that matter, July 2019) is less than one year after October 2018, the People commenced prosecution against defendant in a timely manner. Defendant's sole response is that he did not go to trial until February 2020, which is more than one year after the October 2018 offense. This response is frivolous because it equates the commencement of prosecution with the commencement of trial, a position explicitly refuted by the plain language of section 804.
DISPOSITION
The judgment is affirmed.
We concur: LUI, P. J., CHAVEZ, J.