Opinion
E064463
06-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JARIQUEL HERNANDEZ, Defendant and Appellant.
Maryam Sharifi for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Felicity Senoski, Lynne G. McGinnis, and Christina B. Arndt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1403329) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Maryam Sharifi for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Felicity Senoski, Lynne G. McGinnis, and Christina B. Arndt, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Jariquel Hernandez, guilty as charged of two felony offenses: domestic violence inflicting injury on J.S., defendant's cohabitant and the father of her three children (Pen. Code, § 273.5, subd. (a); count 1) and assaulting J.S. with a deadly weapon, a beer bottle (§ 245, subd. (a)(1); count 2). The court deferred pronouncing judgment and granted defendant three years' supervised probation subject to terms and conditions.
All further statutory references are to the Penal Code unless otherwise indicated.
The evidence at trial showed defendant was arguing with J.S. in the living room of the couple's home when defendant took a beer bottle out of J.S.'s hand and threw it near the sofa where J.S. was sitting. The bottle struck J.S. in his forehead above his right eye, causing a one- to two-inch laceration requiring seven to eight stitches and leaving a scar.
In this appeal, defendant claims: (1) her aggravated assault conviction in count 2 must be reversed because insufficient evidence shows she used the beer bottle as a deadly weapon or in a manner likely to produce death or great bodily injury (§ 245, subd. (a)(1)); (2) the trial court erroneously failed to instruct the jury sua sponte on the lesser included offense of simple assault in count 2 (§ 240); and (3) medical records showing the extent of J.S.'s injury were erroneously admitted because they were insufficiently authenticated. We conclude that none of these claims have merit and affirm the judgment.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. J.S.'s Testimony
At the time of trial in June 2015, defendant and J.S. had been in a relationship for 14 years. They had three children and were still living together. Nearly one year earlier, on the afternoon of July 13, 2014, J.S. was at home drinking beer and watching the final game of World Cup Football when he and defendant got into an argument. Defendant was angry at J.S. because he refused to go to a shopping mall with defendant and the children. J.S. had been drinking beer since around 9:00 a.m., had already drank around 10 beers, and admitted he was "drunk."
J.S was sitting on a sofa in the living room, watching the game and holding a bottle of beer in his right hand. The beer bottle was at least half full. Defendant was trying to talk to J.S. while he was watching the game, but J.S. was ignoring her. The next thing J.S. knew, the bottle struck him on the right side of his forehead. J.S. denied seeing defendant take the bottle out of his hand or throw the bottle at him, but J.S. admitted he could not recall many details of what happened that day because he was "drunk." J.S. did not believe the bottle broke when it struck him, but he was not looking on the floor for broken glass. All three of the children were at home, but J.S. did not recall whether his and defendant's young son, J., was in the room or had witnessed the incident.
After the bottle struck him, J.S. was bleeding "[q]uite a bit," which frightened him, and he was concerned about getting medical attention. He told defendant he was going to call 911. In response, defendant said she did not mean to hit J.S. with the beer bottle; it was an accident; and she "grabbed some towels" and tried to clean J.S. Defendant told J.S. he did not need to call 911 and she would take him to the hospital. J.S. was "nervous" and "angry," told defendant to "get away" from him, and called 911. J.S. denied that defendant told J.S. not to call 911. After J.S. called 911, defendant left the home with the children.
The police and paramedics arrived at the family's home. The paramedics treated J.S., then transported him by ambulance to a hospital emergency room, where he received approximately seven stiches for the cut on his forehead. Before he was taken to the hospital, J.S. spoke to a police officer who responded to his 911 call. J.S. did not tell the officer that defendant accidentally hit him with the beer bottle; instead, he said defendant threw the beer bottle at him. At trial, he explained he was still angry with defendant when he spoke to the officer, and he claimed the incident was an accident because he knew defendant, and she was "not capable" of throwing something at him to intentionally hurt him.
J.S. was in jail for approximately two weeks following the July 13, 2014 incident. During a recorded telephone conversation between J.S. and defendant while defendant was in jail, J.S. twice said that the incident was an accident. During the same call, J.S. told defendant he had called the prosecutors and told them he was going to "drop the charges" and it "hadn't been that way," meaning it was an accident. J.S. testified "it didn't hurt" when the bottle struck him. J.S. had a one and one-half-inch to two-inch scar on his forehead as a result of being struck by the beer bottle.
2. Deputy Lorraine Bertetto's Testimony
San Bernardino County Sheriff's Deputy Lorraine Bertetto arrived at the family's home shortly before 3:00 p.m. on July 13, 2014, four minutes after she was dispatched and before the paramedics arrived. J.S. was sitting at the kitchen table, holding "a rag" to his face and had "blood all over his face and on the table." The deputy did not take photographs of J.S.'s injury because he was "actively bleeding," and she did not want him to remove the rag from his face.
When Deputy Bertetto asked J.S. what had happened, J.S. told the deputy he saw defendant grab the beer bottle from his hand and throw the bottle at him, and this was not the first time defendant had hit him. The deputy could see that J.S. was intoxicated. There was a strong odor of alcohol on his breath, his speech was slurred, there were "beer bottles around," and he said he had drank around eight beers. The deputy's interview with J.S. was not recorded and it was "cut short" and terminated when the paramedics arrived and took J.S. to the hospital—only two minutes after the deputy arrived at the home. During the interview, the deputy did not ask J.S. to point out the bottle that struck him but she saw there was broken glass from at least one beer bottle. The deputy did not photograph the scene.
Defendant arrived home around 3:19 p.m., after the paramedics had taken J.S. to the hospital. In a 10-minute interview conducted after she arrived home, defendant told Deputy Bertetto she was angry at J.S. because he would not go to the mall with her and the children, and he "just wanted to stay home and drink and watch TV." Defendant kept asking J.S. to go to the mall, he kept telling her "no," and she became angry. Defendant said she "got mad and picked up a beer bottle and threw it towards the wall[,] hitting him." Defendant did not say what wall she was trying to hit, nor did she explain why she threw the bottle at the wall, but she said the bottle accidently hit J.S. in the head and he began to bleed. J.S. became angry and asked defendant to leave. Defendant told J.S. he did not need to call 911 and she would take him to the hospital. After she interviewed defendant, the deputy arrested defendant and took her to jail. The deputy interviewed defendant a second time, for 10 to 15 minutes, shortly after she arrested defendant and interviewed J. in the presence of her sergeant and her partner. B. Defense Evidence
1. J.'s Testimony
J. was seven years old both on July 13, 2014 and when he testified at trial in June 2015. J. recalled his parents began arguing on July 13 after defendant asked J.S. for some money and J.S. refused to give her money. When asked whether he remembered telling Deputy Bertetto that his parents "started arguing and that [his] Mom grabbed a beer bottle [his] Dad was drinking and threw it towards the wall but it accidentally hit [his Dad's] head," J. responded, "[y]es." J. said his mother threw the bottle "[u]p but it went down."
On cross-examination, J. said he was in the kitchen "[w]here the table was" when his parents began arguing, and when he went to "see what was going on" his saw his mother throw the bottle that struck his father. When asked to describe how his mother threw the bottle, J. explained that defendant grabbed the bottle with her right hand, raised her right arm up, "then it was turning around and then it almost hit the wall and then it hit his face." The wall was five feet from where his father was sitting. The bottle went "way up in the air and then it came down and hit [J.S.] in the head." J. knew the bottle struck his father by accident "[b]ecause [his mother] was looking at the wall" when she threw the bottle. After J. left with his mother, his mother did not tell him the incident was an accident.
2. Deputy Bertetto's Testimony
The defense called Deputy Bertetto, who testified that when she interviewed J., the boy said he saw his mother grab a beer bottle his father was drinking and throw the bottle towards the wall, but the bottle accidentally hit his father in his head. J. also told the deputy that his two sisters were in their bedroom at the time of the incident. The deputy spoke to the sisters and they said they did not see anything.
3. Defendant's Testimony
Defendant testified that she and J.S. still lived together, but not "as a couple," and they were not "really a couple" on July 13, 2014. That day, defendant had been drinking since around 8:00 a.m. He drank every day, beginning when he wakes up in the morning. J.S. had promised defendant he would go to the mall with her and the children. Defendant was angry with J.S. because he would not give her money to buy things for the children, not because he refused to accompany her and the children to the mall as he had promised.
After J.S. refused to give her money, defendant decided to leave without him. She explained that J.S. was ignoring her, and as she was "leaving towards the door," she "grabbed the bottle and just let go but my back was towards [J.S.] It wasn't like I grabbed it and hit him." When she looked back at J.S., he was bleeding. She did not intend to throw the bottle at J.S. She meant to "piss [J.S.] off" by throwing the bottle and making him "clean up the mess." She was left handed and grabbed and threw the bottle with her nondominant, right hand. She had previously thrown other objects when arguing with J.S., including newspapers and bottles of soda, and on prior occasions she had emptied his beer in the sink.
In contrast to J.'s testimony that defendant was looking at the wall when she threw the bottle, defendant testified she did not look at where she was throwing the bottle when she threw it. She threw the bottle "on purpose" and "towards [J.S.]" but "from [her] side," and she thought the bottle would "land on the wall or on the sofa or just make a mess but not really hurt [J.S.]" She threw the bottle "downwards" and not "very hard," and she was around three feet away from defendant when she threw the bottle. The wall defendant was referring to was around six feet from where J.S. was sitting on the sofa.
No diagram of the living room, kitchen, or any part of the family's home was admitted into evidence.
Defendant was surprised when the bottle struck J.S. in his head, and she tried to help him stop the bleeding. As he called 911, J.S. was walking to the refrigerator to get another beer. J.S. told her to get away from him and leave, and she left because J.S. "was furious." There was no broken glass on the floor when defendant left the home. Defendant drove less than a block away with the children, then pulled over, called the sheriff's department, and told them what had happened. They told her to return to the scene because it would appear she was fleeing, so she returned home and spoke to Deputy Bertetto. C. Defense Motion for Acquittal
Shortly before the close of the evidence, the defense moved for a judgment of acquittal on both charges. (§ 1118.1.) The court denied the motion, noting the "statements of the witnesses to the deputy on the day of the incident" were sufficient to support the charges "despite the in-court testimony."
III. DISCUSSION
A. Substantial Evidence Shows Defendant Used the Beer Bottle as a Deadly Weapon
Defendant claims her conviction in count 2 for assault with a deadly weapon, a beer bottle (§ 245, subd. (a)(1)), must be reversed because insufficient evidence shows she used the beer bottle as a deadly weapon, that is, in a manner likely to produce death or great bodily injury. We disagree. As we explain, substantial evidence shows defendant used the beer bottle in a manner likely to produce great bodily injury to J.S.
In considering a claim that insufficient evidence supports a criminal conviction, an appellate court reviews the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Chatman (2006) 38 Cal.4th 344, 389; People v. Johnson (1980) 26 Cal.3d 557, 578.)
In determining whether the record contains substantial evidence, we "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] 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. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 245, subdivision (a)(1) punishes assaults upon persons "with a deadly weapon or instrument other than a firearm." As used in the statute, the term "deadly weapon" means "'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.' [Citation.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Objects such as dirks and blackjacks are deadly weapons per se, or as a matter of law, because "the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury." (Id. at p. 1029.) "For example, a bottle or a pencil, while not deadly per se, may be a deadly weapon within the meaning of section 245, subdivision (a)(1), when used in a manner capable of producing and likely to produce great bodily injury. [Citations.]" (People v. Brown (2012) 210 Cal.App.4th 1, 7.) Great bodily injury, for purposes of section 245, means significant or substantial injury. (People v. Brown, supra, at p. 7. )
Whether an object that is not inherently deadly or dangerous was used as a deadly weapon is a question of fact for the jury. (See People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 4.) "In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (People v. Aguilar, supra, 16 Cal.4th at p. 1029.) Although, "a conviction for assault with a deadly weapon does not require proof of an injury or even physical contact. . . . '[i]f injuries result, the extent of such injuries and their location are relevant facts for consideration' in determining whether [the] object [in question] was used in a manner likely to produce death or great bodily injury." (In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497.)
Here, no evidence of the size of the glass beer bottle was presented; however, the entire records points to the fact it was a typical 12-ounce glass beer bottle, and J.S. testified it was at least half full of beer when defendant threw it. The beer bottle was not inherently deadly or dangerous, but it was capable of causing great bodily injury if used as a deadly or dangerous weapon. Substantial evidence also shows defendant used the beer bottle as a deadly or dangerous weapon—in a manner likely to produce death or great bodily injury to J.S. The record shows defendant had just been arguing with J.S. and was angry at J.S. when she threw the bottle at him. The bottle struck J.S. above his right eye, causing great bodily injury in the form of a one and one-half to two-inch laceration on J.S.'s forehead. The extent and location of J.S.'s injury belie the defense's claim at trial that J.S.'s injury was accidentally inflicted, and defendant did not intend to strike J.S. with the beer bottle, but only to spill the beer in the bottle or break the bottle against the wall, creating a mess for J.S. to clean up.
Additionally, J.S.'s statements to Deputy Bertetto shortly after the incident occurred show defendant intended to hit J.S. with the beer bottle when she threw it, and that defendant thus used the bottle in a manner likely to produce great bodily injury to J.S. J.S. told the deputy he saw defendant throw the bottle at him and that this was not the first time defendant had hit him. This evidence, together with the extent and location of J.S.'s injury, and defendant's testimony that she threw the bottle towards J.S. on purpose, and while only three feet away from him, undermined the defense's claim of accident and supported a reasonable inference that defendant used the beer bottle in a manner likely to produce great bodily injury to J.S. In sum, substantial evidence supports the jury's implied determination, in finding defendant guilty in count 2, that defendant used the beer bottle as a deadly weapon within the meaning of section 245, subdivision (a)(1).
In support of her claim that insufficient evidence shows she used the beer bottle in a manner likely to produce great bodily injury, defendant points to evidence favorable to her position and ignores the substantial evidence supporting her conviction in count 2. For example, she argues J.S.'s injury was "moderate at best," that J.S. was "bleeding, but hardly felt the blow," that defendant "used her non-dominant [right] hand when throwing the bottle, which would limit the amount of force that could be utilized," and that "[t]he bottle was not even broken by the impact." These attempts to minimize the amount of force defendant used in throwing the bottle and the severity of J.S.'s injury are unavailing. As discussed, the extent and location of J.S.'s injury, together with J.S.'s statements to Deputy Bertetto indicating that defendant intentionally threw the bottle at him, supported a reasonable inference that defendant used the bottle as a deadly weapon—in a manner likely to produce death or great bodily injury.
Defendant relies on several section 245, subdivision (a)(1) cases where insufficient evidence showed the objects or instruments in question were either (1) capable of producing death or great bodily injury or (2) used as deadly weapons. As we explain, each of these cases is factually distinguishable.
In re Brandon T., supra, 191 Cal.App.4th at pages 1494 through 1498 involved a juvenile defendant who pressed a round-ended butter knife against the victim's cheek and throat. The knife caused welts but no significant or substantial injuries, and the handle of the knife broke from its blade when the defendant pressed the knife against the victim's throat. Because the knife broke, the court reasoned the defendant could not have applied enough pressure with the knife to cause the victim's death or great bodily injury. Thus, insufficient evidence showed that the knife was capable of causing death or great bodily injury, and the court reduced the defendant's aggravated assault conviction (§ 245, subd. (a)(1)) to simple assault (§ 240). Here, in contrast to the butter knife used to assault the victim in In re Brandon T., substantial evidence shows that the beer bottle defendant threw at J.S. was capable of causing and caused great bodily injury to J.S. (In re B.M. (2017 10 Cal.App.5th 1292, 1299 [expressly disagreeing with In re Brandon T. in concluding sufficient evidence showed ward used butter knife as deadly weapon].)
In In re Gavin T. (1998) 66 Cal.App.4th 238 at pages 240 through 242, insufficient evidence showed that the juvenile defendant committed assault with a deadly weapon (§ 245, subd. (a)(1)) when he threw a half-eaten apple at a wall, and the apple "sailed" through a partially open door, striking a teacher in the head and rendering her unconscious. Though the juvenile court found that the defendant did not intend to hit the victim with the apple, and there was no evidence to the contrary, the juvenile court found that the defendant committed assault with a deadly weapon in throwing the apple. The appellate court reversed, noting "one cannot unintentionally commit the crime of assault," and the crime requires "either the intent to batter, hit, strike, or wrongfully touch a victim; or . . . a general criminal intent to do an act which is inherently dangerous to human life . . . ."
Here, in contrast to In re Gavin T., substantial evidence showed that defendant intentionally threw the beer bottle at J.S. and assaulted J.S. with a deadly weapon, the beer bottle. (§ 245, subd. (a)(1).) Defendant points out that "all three civilian witnesses," namely, J.S., J., and defendant, testified defendant "had no intention of hitting" J.S. with the beer bottle. But the jury reasonably could have discredited this testimony in light of J.S.'s initial statements to Deputy Bertetto indicating that defendant intentionally threw the beer bottle at J.S. In In re Gavin T., there was no evidence that the defendant intended to hit the teacher with the apple core.
Lastly, in People v. Beasley (2003) 105 Cal.App.4th 1078 at pages 1086 through 1088, insufficient evidence showed the defendant used a broomstick in a manner likely to cause death or great bodily injury or that the broomstick was capable of causing death or great bodily injury to the victim. The victim's testimony was "far too cursory" to establish the defendant used the broomstick in a manner likely to produce death or great bodily injury; the defendant struck the victim with the broomstick on her shoulders and back, but not on her head or face, and the victim did not describe the degree of force the defendant used in hitting her with the broomstick. Further, neither the broomstick nor any photographs of it were introduced into evidence, and there was no evidence of the broomstick's composition, weight, or rigidity. "The jury therefore had before it no facts from which it could assess the severity of the impact between the stick and [the victim's] body." (Id. at p. 1088.)
The victim in Beasley was also beaten with a plastic vacuum cleaner "extension" or attachment, once on the victim's shoulder and once on her back. (People v. Beasley, supra, 105 Cal.App.4th at p. 1088.) The evidence was also insufficient to show that the vacuum attachment was capable of producing and likely to produce great bodily injury, because the victim's description of the attachment was "too vague to determine its precise shape or size, [although] it must have been hollow to function as part of a vacuum cleaner." (Ibid.) Beasley concluded: "Striking an adult's shoulder and back with a hollow plastic instrument is not likely to produce significant or substantial injury[,]" and the bruises on the victim's shoulder and back were insufficient to show that the defendant used the attachment as a deadly weapon. (Ibid.) Thus, in Beasley, the defendant's aggravated assault convictions for striking the victim with the broomstick and vacuum attachment were reduced to simple assault convictions. (Ibid.)
Defendant argues that here, as in Beasley, insufficient evidence shows that the object or instrument used to commit the assault—the beer bottle—was capable of causing death or great bodily injury. Defendant correctly points out that no photographs of the beer bottle were introduced into evidence, but she mistakenly argues there was no evidence of the beer bottle's weight or composition. Although no photographs of the beer bottle were taken or introduced into evidence, no such photographs were necessary because other evidence indicated that the beer bottle was a 12-ounce glass bottle, and J.S. testified the bottle was at least half full when defendant threw it at him. When asked whether the beer bottle broke when it struck him, J.S. testified he was not looking on the floor for any broken glass, plainly indicating that the "bottle" was a glass bottle. The record also supports a reasonable inference that the beer bottle was a 12-ounce bottle, because J.S. told Deputy Bertetto and testified at trial that he drank multiple (eight or 10) "beers" before the assault occurred. The jury could have reasonably inferred that J.S. was talking about typical 12-ounce bottles of beer. In sum, the record supports a reasonable inference that the beer bottle defendant used in assaulting J.S. was a 12-ounce glass beer bottle, at least half full of beer, and capable of causing death or great bodily injury to J.S. B. The Trial Court Was Not Required to Instruct the Jury Sua Sponte on the Lesser Included Offense of Simple Assault (§ 240) in Count 2
The jury was not instructed on the lesser included offense of simple assault to the charged offense of assault with a deadly weapon in count 2. After the jury returned its verdicts, the prosecutor noted for the record, and the trial court acknowledged, that the parties and the court had discussed and agreed that no instructions on lesser included offenses would be given for the jury's consideration.
Defendant claims the court had a duty to instruct the jury sua sponte on the lesser included offense of simple assault in count 2, and prejudicially erred in failing to instruct the jury on simple assault. We conclude there was no error because insufficient evidence showed defendant committed simple assault but not assault with a deadly weapon.
A simple assault is a lesser included offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) "[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 288.) A simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault with a deadly weapon is nothing more than an assault where there is used a deadly weapon (People v. McDaniel, supra, at p. 748), which has been defined as including any instrument or object which is used in such a manner as to be capable of producing and likely to produce death or great bodily injury (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029). Thus, an assault with a deadly weapon cannot be committed without necessarily committing a simple assault.
Prior to 2012, former subdivision (a)(1) of section 245 provided: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison . . . ." (Stats. 2004, ch. 494, § 1, p. 4040, italics added.) "Effective January 1, 2012, section 245 was divided into two separate and distinct subdivisions: section 245, subdivision (a)(1) now prohibits assault with a deadly weapon or instrument other than a firearm, and new subdivision (a)(4) prohibits assault by means of force likely to produce great bodily injury. (Stats. 2011, ch. 183, § 1).)" (People v. Lamb (2017) 8 Cal.App.5th 137, 140.)
Even if a defendant expressly waives instructions on a lesser included offense, the trial court is required to instruct on any lesser included offenses supported by the evidence. (People v. Golde (2008) 163 Cal.App.4th 101, 115.) "We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, '"that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted, '"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]." (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
"'The obligation to instruct [sua sponte] on lesser included offenses [as opposed to defenses] exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] 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. [Citation.]' [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) "[I]nsofar as the duty to instruct applies regardless of the parties' requests or objections, it prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict . . . no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function' [citation]. 'These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.' [Citation.]" (Id. at p. 155.)
Here, there was no evidence that defendant committed a simple assault on J.S. but did not also assault J.S. with a deadly weapon, the beer bottle. The evidence showed that defendant assaulted J.S. by throwing the beer bottle at J.S. and by no other means. The defense did not dispute that defendant intentionally threw the beer bottle. The defense claimed only that defendant did not intend to hit J.S. with the bottle; the bottle struck J.S. by accident; and because the bottle struck J.S. by accident defendant did not use the bottle as a deadly or dangerous weapon. The jury, however, reasonably could not have found defendant guilty of simple assault, but not assault with a deadly weapon, had the jury been instructed on the lesser included offense of simple assault. In the case of both offenses, the jury is instructed that the defendant must act willfully. (CALCRIM Nos. 915 [simple assault], 875 [assault with deadly weapon].) There is no way that willfully throwing a glass beer bottle at a person, while angry, striking the person in the face, and with sufficient force to cause significant bleeding and necessitating seven to eight stitches, can constitute simple assault but not assault with a deadly weapon. (See People v. Golde, supra, 163 Cal.App.4th at pp. 115-117 ["[T]here is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon . . . ."].)
Additionally, the jury reasonably could not have found defendant guilty of simple assault—even if the jury believed and fully credited defendant's testimony that she did not intend to hit J.S. with the beer bottle, that she was looking away from J.S. when she threw the beer bottle, and that she only intended that the beer bottle would hit the wall, spill, and make a mess for J.S. to clean up. If, as defendant claimed, she only accidentally hit J.S. with the beer bottle, then she was not guilty of simple assault or assault with a deadly weapon, because she lacked the necessary mental state to commit an assault. (People v. Colantuono (1994) 7 Cal.4th 206, 219 [mens rea necessary for assault is "'an intent merely to do a violent act.'"].)
Defendant again relies on Beasley to support her claim it was error to deprive the jury of the opportunity to find that defendant did not use the beer bottle as a deadly or dangerous weapon, or that the beer bottle was not capable of causing great bodily injury to J.S. Again, defendant's reliance on Beasley is misplaced. As explained in Beasley, insufficient evidence showed that defendant used the broomstick or the plastic vacuum attachment as deadly or dangerous weapons—neither instrument was used to beat the adult victim about her face or head, but only to beat her back and shoulders. Nor was there sufficient evidence that the instruments were capable of causing great bodily injury to the victim. (People v. Beasley, supra, 105 Cal.App.4th at pp. 1087-1088.) Here, no reasonable jury could have concluded that defendant did not use the beer bottle as a deadly or dangerous weapon, or that the bottle was incapable of causing great bodily injury to J.S. (People v. Golde, supra, 163 Cal.App.4th at pp. 116-117 [rejecting similar argument based on Beasley]; People v. Page (2004) 123 Cal.App.4th 1466, 1473 [holding sharp pencil to victim's neck and threatening to stab victim with it if the victim called the police was using the pencil as a deadly weapon as a matter of law, and there was no error in failing to instruct on simple assault because no reasonable jury could have found the defendant guilty of only simple assault but not assault with a deadly weapon]; cf. People v. Lee (1937) 23 Cal.App.2d 168, 170 [no error in instructing jury on lesser offense of simple assault where instrument used in the assault, a club or gas pipe, was not deadly weapon as a matter of law].) C. The Assault on J.S. Was Necessarily Assault With a Deadly Weapon, the Beer Bottle
The dissent disagrees with our conclusions that (1) substantial evidence shows defendant used the beer bottle as a deadly weapon, and (2) there was insufficient evidence to support an instruction on the lesser included offense of simple assault. The dissent would accordingly reduce defendant's aggravated assault conviction (§ 245, subd. (a)) to simple assault (§§ 240, 1181, cl. 6, 1260).
Our differences with the dissent are based on differing views of the evidence and the different standards of review that apply to each issue. Respectfully, in concluding the evidence was insufficient to support the aggravated assault conviction, and sufficient only to support an instruction on simple assault, the dissent misconstrues key evidence concerning the nature of the assault.
The dissent concludes that defendant's testimony "filled the gap in the prosecution case" concerning how defendant threw the bottle and showed that the assault was, at most, a simple assault. The dissent likewise concludes that the prosecution's evidence was insufficient to show defendant used the bottle as a deadly weapon, because it did not show how hard or how forcefully defendant threw the bottle ("Did she perform a full windup?"), and that defendant's testimony "provided a reasonable jury a sound basis for finding [she] did not use the beer bottle as a deadly weapon, and therefore committed simple assault." We disagree, for several reasons.
First, there was no gap in the prosecution's case. As the dissent acknowledges, J.S. told Deputy Bertetto, shortly after the incident, that he saw defendant take the bottle from him and throw the bottle at him. Based on J.S.'s statement to the deputy, the jury reasonably could have inferred that defendant threw the bottle directly at J.S., and intended to hit J.S. in the head with the bottle. This was substantial evidence of how the bottle was thrown, and no further details were necessary. The dissent does not acknowledge that the jury reasonably could have disregarded J.S.'s subsequent recantations of his initial statement to the deputy concerning how the bottle was thrown and how the assault occurred. For the reasons explained in section III.A., the evidence, when viewed in the light most favorable to the judgment, supports the judgment.
Second, the evidence, when viewed in the light most favorable to defendant, did not support an instruction on simple assault. The dissent suggests that a half-full glass beer bottle is, as a matter of law, not used as a deadly weapon if it is merely tossed, flipped, or thrown, and "not very hard," at or in the direction of a person from a distance of only three feet. Respectfully, the dissent misapprehends how very dangerous it is to toss such a heavy, breakable glass object at or near a person, even from a short distance—particularly in anger, during the heat of an argument. It is important to remember the factual context in which this crime occurred.
A half-full beer bottle is a heavy and breakable glass object, quite capable of producing and likely to produce great bodily injury, or a significant or substantial injury (People v. Brown (2012) 210 Cal.App.4th 1, 7), if tossed, flipped, or thrown at or in the direction of a person, even from a short distance (People v. Page, supra, 123 Cal.App.4th at pp. 1473-1474 [holding sharp pencil to victim's neck was using pencil as deadly weapon as a matter of law and did not require instruction on simple assault]; In re B.M., supra, 10 Cal.App.5th at p. 1295, fn. 1 ["In theory, throwing a telephone at another person with the requisite intent can be an assault with a deadly weapon."]).
It is our view that lightly tossing a baseball at a person from a short distance, as described by the dissent, is not comparable to throwing a heavy, breakable, and half-full 12-ounce glass bottle at someone in anger. Such a baseball toss may not be likely to cause great bodily injury. But here, defendant's throw of the glass bottle was likely to and did cause great bodily injury.
Additionally, we find no evidence in the record that the half-full 12-ounce beer bottle in this case weighed "only approximately 375 grams—about the weight of a regulation football or a cheap dinner plate."
By defendant's testimony and that of her witness, J., defendant effectively admitted she used the beer bottle as a deadly weapon. Defendant claimed she threw the bottle from her side, using her nondominant right hand, and "not very hard," while walking away from J.S. and not looking at him. She thought the bottle would land on the wall, around six feet from where J.S. was sitting. She also admitted she was angry when she threw the bottle. Seven-year-old J. testified he saw the bottle go "way up in the air and then it came down and hit [J.S.] in the head."
This evidence indisputably showed that defendant tossed the bottle in such a manner that it was likely to cause great bodily injury to J.S.. No rational juror could have concluded this toss of the bottle was not using the bottle as a deadly weapon. Any rational juror would know that such a toss of such a heavy and breakable glass object in anger, so near to where a person is sitting, is a toss capable of producing and likely to produce great bodily injury to the person. Despite her attempt to minimize the severity of her toss or throw of the bottle, defendant necessarily used the bottle as a deadly weapon when she threw it at J.S.
The dissent also minimizes the severity of J.S.'s injury by calling it "not serious," even though a cut that causes significant bleeding requires seven to eight stiches, and leaves a one and one-half-inch scar, is plainly a significant and substantial injury. While acknowledging that the nature of a victim's injury is probative but not dispositive of whether the object that caused the injury was used as a deadly weapon (People v. McDaniel, supra, 159 Cal.App.4th at pp. 748-749), the dissent states: "More detailed evidence of the nature of the injury or the assault might have justified [a] finding[by the jury that] Hernandez used the bottle as a deadly weapon."
In our view, the significant injury that J.S. suffered underscores just how very dangerous it was for defendant to toss or throw the bottle, in the manner in which she claimed she threw the bottle, so near to where J.S. was sitting. Contrary to the dissent's view, the medical records did not indicate that the injury to J.S. was "not serious." What was likely to happen by that toss of the bottle did happen: J.S. sustained a serious and substantial cut, and a resulting scar.
For these reasons, we respectfully disagree with the dissent's view of the evidence in this case, and stand by our conclusions. D. Any Error in Admitting the Medical Records Concerning J.S.'s Injury Was Harmless
Over defense counsel's objection, the trial court admitted in evidence five pages of medical records dated July 13, 2014, concerning J.S.'s admission and treatment at St. Bernardine Medical Center for the injury on his forehead.
Defendant claims the court prejudicially erred in admitting the medical records because they were (1) irrelevant to any disputed issues, (2) insufficiently authenticated, and (3) highly prejudicial. It is unnecessary to determine whether the medical records were erroneously admitted because any error in admitting them was harmless.
1. Relevant Background
In pretrial proceedings, the prosecutor said he would offer into evidence J.S.'s medical records which had been provided to the court by St. Bernardine Medical Center in response to a subpoena duces tecum. Copies had been provided to defense counsel. The prosecutor said he had spoken with defense counsel, who said "he did not think it was necessary for [the prosecutor] to call the custodian of records to admit them and say they were official records." The prosecutor believed the defense would stipulate to the admission of the records, or at least not object to their admission. The prosecutor noted that no photographs were taken of J.S.'s injury.
The court clarified that the medical records were in the court's file, were challenging for a layperson to understand, and contained "lots and lots [of] cumulative stuff." The court suggested that the admitted medical records be limited to the portion, if any, showing the injury J.S. sustained, and a description of the injury. The court stated, "[s]ince we've got certified copies, I'd probably let that in in conjunction with the victim's testimony." Defense counsel later stipulated that J.S. was treated for his injury at St. Bernardine Medical Center.
After the People presented its case-in-chief, the prosecutor moved J.S.'s medical records into evidence as exhibit 1. For foundational purposes, the prosecutor noted that the records were subpoenaed directly from the hospital where the parties had stipulated J.S. was treated for his injury, and the records showed J.S.'s date of birth, the date of the incident, and his need for medical treatment.
The defense objected to the admission of the medical records on the ground they contained no information not already adduced during the trial and on the further ground that the foundation requirements for subpoenaed records had not been met. The court overruled the objection and admitted the records, noting they "were properly submitted in response to a subpoena [duces tecum] to the Court," and they had been redacted so that "[o]nly relevant five pages are being admitted." The court also admitted the records on the ground they were relevant to corroborate J.S.'s testimony that he was injured as a result of the assault.
2. Analysis
As noted, defendant claims the five pages of medical records were erroneously admitted because they were irrelevant to any disputed issues, they were insufficiently authenticated, and they were highly prejudicial. We conclude that even if, as defendant claims, the records contained no relevant information not otherwise adduced at trial (Evid. Code, §§ 210, 350), and even if the medical records were insufficiently authenticated (Evid. Code, §§ 1560, 1561, 1271), the admission of the records was not prejudicial to the defense. There is no reasonable probability defendant would have realized a more favorable result had the records not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
As defendant points out, the records include a very brief notation under the "reason for admission" portion stating that J.S. was "hit by beer bottle in head." Defendant claims this statement "with no other notes or clarification could easily be misread." We disagree. It was undisputed that J.S. was struck by a beer bottle in his head, and as a result he sustained a one and one-half-inch to two-inch laceration above his right eye, which bled profusely and caused a scar. The jury heard the circumstances in which defendant was struck in the head with the beer bottle, and the medical records included no statements concerning the circumstances of the injury.
As defendant also points out, the medical records indicate that J.S. received eight stitches for the cut on his forehead, in contrast to J.S.'s trial testimony in which he recalled receiving around seven stitches. This is not a significant discrepancy, however. Furthermore, the records contained no photographs of J.S.'s injury nor any inflammatory remarks concerning the injury. The handwritings in the medical records are barely legible to the extent they are legible at all. It is inconceivable that the admission of the medical records affected the outcome of the trial.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. I concur: RAMIREZ
P. J.
Slough, J., Dissenting.
I respectfully disagree with the majority opinion. I believe substantial evidence supported a finding that Hernandez committed simple assault but not the finding that she committed assault with a deadly weapon when she threw a beer bottle and hit her cohabitant, J.S., in the head. Consequently, the trial court was required to instruct the jury on the elements of simple assault (Pen. Code, § 240) but should not have allowed the jury to reach a verdict on aggravated assault (Pen. Code, § 245). In combination, these determinations lead me to conclude we should modify the conviction for count 2 from assault with a deadly weapon to simple assault.
In reaching the contrary conclusion, my colleagues depart from our precedent regarding the sua sponte obligation of the trial court to instruct jurors on lesser included offenses. The majority concludes throwing a hard object weighing only approximately 375 grams—about the weight of a regulation football or a cheap dinner plate—necessarily constitutes using the object as a deadly weapon if the offender throws it at a person, no matter how lightly she throws it. (Maj. opn. at pp. 23-24 ["No rational juror could have concluded this toss of the bottle" which Hernandez said she threw "not very hard" with her weaker arm "was not using the bottle as a deadly weapon"].) This holding effectively instructs prosecutors they need not present evidence of how an accused threw such an object to obtain a conviction for aggravated assault. It also effectively instructs trial courts they need not instruct jurors on simple assault if the evidence shows the accused threw a hard object weighing about three-quarters of a pound at a person. I write separately to emphasize that is not the law.
I recognize the majority opinion is not certified for publication. However, it is an open secret that judges and attorneys refer to unpublished opinions for guidance even if they cannot rely on them as precedent.
"'[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.'" (People v. Licas (2007) 41 Cal.4th 362, 366.) It is well-established simple assault is a lesser included offense of aggravated assault, including assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748; People v. Carmen (1951) 36 Cal.2d 768, 775 ["Assault with a deadly weapon is nothing more than an assault where there is used either a deadly weapon or any means of force likely to produce 'great' bodily injury"], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685.)
A trial court must instruct concerning all lesser included offenses which find substantial support in the evidence. (People. v. Barton (1995) 12 Cal.4th 186, 194-195.) Substantial support is evidence a reasonable jury could find persuasive, which, if accepted, would absolve defendant of guilt on the greater offense, but not on the lesser. (People v. Licas, supra, 41 Cal.4th at p. 366.) "When evaluating whether a lesser included offense instruction should have been given, we view the evidence in the manner most favorable to the defendant and apply an independent review standard." (People v. Mullendore (2014) 230 Cal.App.4th 848, 856 (Mullendore); see also People v. Manriquez (2005) 37 Cal.4th 547, 584-585.)
As the majority acknowledges (Maj. opn. ante, at p. 18, fn. 4), the trial court must instruct on lesser included offenses supported by substantial evidence in all circumstances, even when a party, for tactical reasons, seeks to present the jury with an all-or-nothing choice between the offense charged and acquittal. (People v. Banks (2014) 59 Cal.4th 1113, 1159-1160, abrogated on other grounds by People v. Scott (2015) 61 Cal.4th 363, 386.) "The state has no interest in a defendant obtaining an acquittal where he is innocent of the primary offense charged but guilty of a necessarily included offense. Nor has the state any legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense. Likewise, a defendant has no legitimate interest in compelling the jury to adopt an all or nothing approach to the issue of guilt. Our courts are not gambling halls but forums for the discovery of truth." (People v. St. Martin (1970) 1 Cal.3d 524, 533.)
"As used in section 245, subdivision (a)(1), a 'deadly weapon' 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.' [Citation.] Some few objects . . . have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029, italics added.) It is the jury's role to determine whether the evidence supports a finding that the defendant used the object in a manner likely to cause great bodily injury. (People v. Helms (1966) 242 Cal.App.2d 476, 486.)
Here, the trial court did not instruct the jury on the elements of simple assault, and the jury convicted Hernandez of assault with a deadly weapon. Thus, the question Hernandez's appeal poses is whether a reasonable jury could have found she committed only a simple assault and not an assault with a deadly or dangerous weapon when she threw the beer bottle at J.S. I believe a reasonable jury not only could have found Hernandez committed simple assault, but, given the insubstantiality of the evidence of how she committed the assault, almost surely would have so concluded.
The People's evidence of the events itself supplies substantial evidence from which the jury could have found the attack was simple assault. As the majority recounts, at trial, J.S. said he was sitting in the living room, watching a soccer game on television while drinking a beer. Hernandez was trying to talk to him, but he ignored her. According to his account at trial, the next thing he knew, his beer bottle struck him on the right side of the forehead. He said he did not see Hernandez take the bottle or throw it at him. He also said he did not believe the bottle broke when it hit him, but was unsure. In addition, J.S. admitted he was well in his cups when the assault occurred, having already downed eight to 10 beers.
The People's case did not end there, however, because J.S. gave a slightly different account to a law enforcement officer at the scene, and the officer testified at trial. According to the officer, J.S. told her he saw Hernandez grab a half-full beer bottle from his hand and saw her throw it at him. At trial, J.S. denied telling the officer he saw Hernandez take and throw the bottle. He said he told the officer simply that she took and threw the bottle. Setting that disagreement to one side, and assuming J.S. did see the assault, he did not provide law enforcement with any information about how she threw the bottle. As a result, the officer testified only that Hernandez threw the bottle at J.S.; she did not testify about the manner in which she did so.
The majority appears to believe the officer's testimony that J.S. saw Hernandez throw the bottle at him did constitute evidence of the manner in which she threw the bottle. (Maj. opn. at p. 22.) In my view, her testimony merely rebutted Hernandez's defense that she hit J.S. with the bottle by accident. The testimony therefore provided substantial evidence Hernandez committed assault, but not that the assault was aggravated.
In determining the danger posed by throwing a blunt object at a person, the force of the throw is obviously critical. A baseball weighs even less than a half-full beer bottle, but can be deadly thrown at 100 mph at a batter's head. Tossed lightly from a few feet away, a baseball is not so dangerous. So, what do we know from the prosecution's case about how Hernandez assaulted J.S.? Did she throw the bottle with significant force? Did she perform a full windup? Did the bottle break on impact? Did the blow cause J.S. to fall over? Or did Hernandez merely toss the bottle and catch J.S. at a bad angle? We simply do not know from the prosecution's evidence how the assault went down, and—critically—neither did the jury.
However, Hernandez testified in her defense and filled in some details. She said she is left handed, but grabbed and threw the bottle with her non-dominant right hand. Her seven-year-old son confirmed he saw her use her right hand, and law enforcement confirmed she said at the scene she had used her right hand. Hernandez also said she threw the bottle from the side and not very hard. She agreed with the characterization that she had flipped the bottle at J.S. and said she was about three feet away from him when she let the bottle go. This evidence filled the gap in the prosecution case, and it is this evidence we are required to credit in deciding whether a simple assault instruction was necessary. (Mullendore, supra, 230 Cal.App.4th at p. 856.) In my view, the evidence about how Hernandez threw the bottle, construed in the manner most favorable to Hernandez, provided a reasonable jury a sound basis for finding Hernandez did not use the beer bottle as a deadly weapon. The trial court was therefore required to instruct the jury it could find she committed simple assault.
The majority acknowledges this principle only in the breach. It says it is considering "the evidence . . . viewed in the light most favorable to defendant" but then bottoms its conclusion the evidence of simple assault was not substantial on the purported statement by her seven-year-old son that the bottle went "way up in the air and then it came down and hit [J.S.] in the head." (Maj. opn. at pp. 22-23.) The majority writes "[t]his evidence indisputably showed that defendant tossed the bottle 'up in the air,' allowing it to fall near J.S." and concludes "[n]o rational juror could have concluded this toss of the bottle was not using the bottle as a deadly weapon." (Maj. opn. at pp. 23-24.) There are several reasons the majority's reasoning fails. First, the majority is quoting the prosecutor's question, not the child's testimony. The child actually said his mother threw the bottle "[u]p but it went down." Second, the child's testimony is ambiguous, and does not clearly do the work the majority believes it does. Third, and most important for the purposes of an appellate court, if the child's testimony can be construed to contradict Hernandez's testimony, we may not rely on it to demonstrate a lack of substantial evidence the incident was a simple assault. In other words, by interpreting this evidence as they do and relying on it to conclude no substantial evidence supports simple assault, my colleagues simply fail to view the evidence in the light most favorable to the defendant, as they are required to do. (Mullendore, supra, 230 Cal.App.4th at p. 856.)
Contrary to the majority's analysis, this case bears no similarity to People v. Golde (2008) 163 Cal.App.4th 101, 115-117, where the defendant "drove a motor vehicle toward the four-foot, 11-inch, 83-pound victim, and repositioned the vehicle in her direction when she tried to move out of its way." Such evidence was sufficient to take simple assault out of the Golde case. The prosecution presented no similar evidence here. Needless to say, a beer bottle is not as dangerous an instrument as a motor vehicle. And though it is possible to use a beer bottle as a dangerous weapon, the bare fact that Hernandez threw it and hit J.S. does not establish she did so. (Cf. In re B.M. (2017) 10 Cal.App.5th 1292, 1296 [holding evidence offender attacked victim with a butter knife using "downward stabbing motions" constituted substantial evidence she used it as a deadly weapon].) By withholding the simple assault instruction, the trial court took that factual issue away from the jury.
J.S.'s injury does not make up for the faulty evidence about the assault. The nature of a victim's injury is probative, but it is not dispositive. (McDaniel, supra, 159 Cal.App.4th at pp. 748-749.) At the time of his testimony at trial, J.S. had a small scar. Otherwise, the evidence concerning the injury was limited. The officer who responded to the scene said she found J.S. at the kitchen table holding a rag to his face and reported there was "blood all over his face and on the table." The officer did not take photographs of the injury, and the prosecutor did not put on photographic evidence, testimony by a treating physician, or a medical expert. Meanwhile, Hernandez testified she was surprised to find J.S. bleeding and tried to help him. She said she looked "to see if [the cut] was big enough that, you know, that he needed like right-away-medical-attention," but concluded the cut "wasn't that big" and she could take him to the hospital without calling 911. In the end, J.S. refused her help and an ambulance took him to the hospital.
J.S.'s medical records similarly indicate the injury was not serious. He received a simple suture, three centimeters long. He did not need sedation, treatment for a concussion, or a transfusion. His treatment lasted only 15 minutes, and he was released to return home. His treating physician removed the sutures 10 days later and noted the "wound appears to be completely . . . healed." It is common knowledge wounds to the scalp bleed profusely. More detailed evidence of the nature of the injury or the assault might have justified finding Hernandez used the bottle as a deadly weapon. On this record, however, I doubt the jury's verdict withstands even Hernandez's substantial evidence challenge. In any event, there is no question in my mind the jury was not required by this evidence to find Hernandez used the beer bottle in a manner likely to cause great bodily injury.
My colleagues completely ignore J.S.'s medical records as well as Hernandez's testimony about the seriousness of the injury. Instead, the majority focuses entirely on evidence the wound bled profusely, required seven to eight stiches, and left a one and one-half inch scar to support its conclusion there was no substantial evidence of simple assault. Again, its reliance on that evidence is improper because it applies the wrong legal standard to evaluating whether the lesser included instruction was required. We must construe the evidence favorably to Hernandez, and may not cherry-pick evidence to support the verdict. Here, the medical records and Hernandez's testimony support finding the bottle caused a small laceration, which a doctor treated in 15 minutes and had completely healed within 10 days. Though Hernandez confirmed the wound bled a lot, she said after inspecting it she did not think it required immediate medical attention. That evidence is enough to allow the jury to determine whether J.S. suffered great bodily injury and whether Hernandez used the beer bottle in a manner likely to inflict great bodily injury.
I acknowledge the majority discusses the records in the context of evaluating Hernandez's challenge to their admission as irrelevant, insufficiently authenticated, and prejudicial. I agree admitting the records caused no prejudice. In fact, I believe they affirmatively would have helped her case by providing a basis for a properly instructed jury to conclude J.S.'s injury was not serious.
I am not comfortable placing much weight on the claim J.S. had a scar measuring one and one-half to two inches long. No one testified to that effect at trial. The measurement represents the trial court's eyeball estimate from the bench. Moreover, it is inconsistent with the medical records (three centimeters) and the testimony of law enforcement at the preliminary hearing (one inch).
In a noncapital case, we evaluate the trial court's failure to instruct on lesser included offenses supported by the evidence for prejudice under Watson; we reverse only if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 178.) On this record, I cannot say the trial court's failure to instruct on simple assault was not prejudicial under the Watson standard. Without the simple assault instruction, the jury faced an "unwarranted all-or-nothing choice" of conviction or acquittal on facts showing Hernandez was guilty of some offense. (People v. Hughes (2002) 27 Cal.4th 287, 365.) I cannot say that "the availability of a third option—convicting [Hernandez] of simple assault—could not have resulted in a different verdict." (Keeble v. United States (1973) 412 U.S. 205, 212-213.) In addition, the prosecution put on a weak case. J.S.'s statements about the assault were vague and lacked any detail. Meanwhile, Hernandez said she threw the bottle from the side using her non-dominant hand. The medical records make the injury appear nonserious. Based on the limited evidence concerning the assault and the injury, I find it not just reasonably probable, but a sure bet the jury would have returned a result more favorable to Hernandez under proper instruction. I therefore conclude the trial court's failure to instruct on simple assault was prejudicial.
People v. Watson (1956) 46 Cal.2d 818, 836-837.
I want to emphasize—contrary to the majority's mischaracterization of my view—hitting someone in the head with a thrown beer bottle is not simple assault as a matter of law. (Maj. opn. at pp. 22-23.) To the contrary, whether such an assault is simple or aggravated is very much a question of fact for a properly instructed jury. And that is precisely why it is so critical for trial courts to instruct juries on both simple assault and assault with a deadly weapon where the evidence can support either verdict. I am inclined to believe the point is elementary for our capable trial courts, but this case demonstrates it bears repeating.
It just so happens in this case the prosecution failed to provide evidence that is reasonable, credible and of solid value, from which a reasonable trier of fact could find the defendant guilty of assault with a deadly weapon beyond a reasonable doubt. (People v. Houston (2012) 54 Cal.4th 1186, 1215.) The People's case lacked evidence on the manner in which Hernandez committed the assault—evidence our precedents establish is critical to proving a defendant used an object not inherently deadly in a deadly fashion. (E.g., People v. Cordero (1949) 92 Cal.App.2d 196, 198-200 [substantial evidence offender used a beer bottle as a deadly weapon where witness testified offender used it to hit the victim multiple times, knocking him to the ground, knocking him out, and leaving him hospitalized for six weeks]; People v. Golde, supra, 163 Cal.App.4th at pp. 115-117 [substantial evidence vehicle used as a deadly weapon where evidence showed offender altered course of the vehicle to hit the victim when she tried to move out of the way]; People v. Page (2004) 123 Cal.App.4th 1466, 1469 [substantial evidence pencil used as a deadly weapon where offender admitted holding pencil to victim's neck, threatening to stab him]; In re B.M., supra, 10 Cal.App.5th at p. 1296 [substantial evidence butter knife used as a deadly weapon where evidence showed offender used "downward stabbing motions" to attack victim].) This case is more like People v. Beasely (2003) 105 Cal.App.4th 1078, 1086-1088, where the evidence did not support the jury's finding the offender used a broom stick as a deadly weapon in part because victim failed to describe the degree of force the defendant used in hitting her. Because this record contains nothing to indicate the degree of force Hernandez used, I also disagree with the majority's conclusion there was substantial evidence to support the verdict she committed aggravated assault.
Because I believe there was substantial evidence Hernandez committed simple assault, the proper remedy is to reduce the conviction on count 2 from assault with a deadly weapon to simple assault. Where prejudicial error affects a greater offense of conviction, but does not affect a lesser offense, and the record establishes the defendant committed the lesser offense, the appellate court may remedy the error by modifying the judgment to a conviction for the lesser offense. (Pen. Code, §§ 1181, cl. 6, 1260; People v. Kelley (1929) 208 Cal. 387, 393 [reducing conviction from first degree murder to manslaughter because substantial evidence supported the latter, but not the former offense].)
Accordingly, I would modify the judgment, reducing count 2 from assault with a deadly weapon to simple assault.
SLOUGH
J.