Opinion
2d Crim. B306345
06-22-2021
THE PEOPLE, Plaintiff and Respondent, v. NASSER LAVI, Defendant and Appellant.
Adrian Dresel-Velazquez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Roberta L. Davis, William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Ventura Super. Ct. No. 2019031654 Ben Coats, Judge
Adrian Dresel-Velazquez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Roberta L. Davis, William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Nasser Lavi appeals from the judgment entered after a jury had convicted him of assault by means of force likely to produce great bodily injury (assault GBI - Pen. Code, § 245, subd. (a)(4)); willfully inflicting physical pain upon an elder (elder abuse -§ 368, subd. (b)(1)); and making threatening phone calls, a misdemeanor (§ 653m, subd. (a)). The victim was appellant's 78-year-old uncle, J.L. (Uncle). Appellant was sentenced to prison for three years.
All statutory references are to the Penal Code.
Appellant contends that the trial court erroneously failed to instruct the jury sua sponte on self-defense. In addition, he claims that the court erred in instructing the jury on the uncharged offense of assault GBI. Appellant was charged with assault with a deadly weapon (ADW). (§ 245, subd. (a)(1).) He maintains that the instruction on assault GBI was improper because it is not a lesser included offense of ADW. Finally, appellant meritoriously argues that, in violation of section 654, the trial court imposed an unstayed concurrent term for the elder abuse conviction. We modify the judgment to stay execution of the sentence imposed for that conviction and affirm the judgment as modified.
Facts
Appellant, who was about 55 years old, mistakenly believed that Uncle owed him millions of dollars. Appellant left numerous profanity-laced voicemails on Uncle's phone threatening to commit acts of violence against him. In one of the voicemails, appellant said he was “coming to see” Uncle “[a]nd you better have a fucking army behind you, bitch. An army!”
A few weeks after the “army” voicemail, Uncle opened his garage door and saw appellant's car blocking the driveway. The car was parked behind Uncle's vehicle. Appellant asked Uncle questions requiring a “yes” or “no” answer. When Uncle replied “no, ” appellant “came at [him] full force, throwing some punches.” At trial Uncle testified that one of the punches had struck him on the side of his left eye. However, at the preliminary hearing Uncle had testified, “‘I don't think he reached [punched] me, I don't think he did.'”
Uncle turned to retrieve a machete hanging from a hook on the wall inside the garage. He intended to use it to defend himself. When he turned, Uncle “felt something hit [his] face” and then immediately “heard something hitting the floor.” Blood gushed “[f]rom [his] forehead down to [his] chin.” Appellant was standing at least five feet away from Uncle, too far away to hit Uncle in the face with his fists. Uncle grabbed the machete and “chase[d] [appellant] back to his car.”
At the spot in the garage where he had been hit in the face before grabbing the machete, Uncle found a slab of granite on the floor. He concluded that appellant had thrown the granite at him, causing the injury to his face. Before appellant parked his car in Uncle's driveway, the slab of granite had been on a chair beside a table. Uncle testified, “I believe that while I was turning around to pick up the machete [appellant] picked up the... granite....”
The slab of granite was received in evidence. A police officer estimated that it weighed between 15 and 20 pounds. It was about two feet long, four inches wide, and two inches deep.
Appellant did not testify.
No Duty to Instruct Sua Sponte on Self-Defense
Appellant claims that the trial court had a duty to instruct the jury sua sponte on self-defense. “A trial court is required to instruct sua sponte on any defense, including self-defense, only when there is substantial evidence supporting the defense, and the defendant is either relying on the defense or the defense is not inconsistent with the defendant's theory of the case.... [¶]... In determining whether substantial evidence supports a defense, the trial court must leave issues of witness credibility to the jury.” (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
“‘To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], and ‘... any right of self-defense is limited to the use of such force as is reasonable under the circumstances....'” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 (Minifie), first brackets in original.)
Substantial evidence does not support the theory that appellant was acting in self-defense when he assaulted Uncle. Appellant punched Uncle and threw the slab of granite before he had reasonable grounds to believe that “‘bodily injury [was] about to be inflicted on him.'” (Minifie, supra, 13 Cal.4th at p. 1064.) Uncle did not grab the machete until after he had been hit in the face by the granite.
In any event, appellant cannot invoke self-defense because he initiated a physical attack against Uncle. “It is well established that the ordinary self-defense doctrine-applicable when a defendant reasonably believes that his safety is endangered-may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault...), has created circumstances under which his adversary's attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Accordingly, the trial court had no duty to instruct sua sponte on self-defense.
Lesser Included Offense
Count 1 of the information alleged that appellant had committed “the crime of assault with [a] deadly weapon, in violation of Penal Code [section] 245(a)(1), ” and that the deadly weapon was a “granite slab.” (Capitalization omitted.) The trial court instructed the jury on both ADW and the uncharged offense of assault GBI. (§ 245, subd. (a)(4).) The jury found appellant not guilty of ADW but guilty of assault GBI, “a lesser crime to the crime alleged in Count 1 of the Information.” (Capitalization and bold omitted.)
Appellant contends that the trial court erroneously instructed the jury on assault GBI because it is not a lesser included offense of ADW. “A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations.] The reason for this rule is settled. ‘“This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.]”' [Citation.] The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed.” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).)
Our Supreme Court has “applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements' test and the ‘accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
“Although now contained in two separate subparagraphs of subdivision (a) in section 245 [subdivisions (a)(1) and (a)(4)], assault with a deadly weapon and assault with force likely to cause great bodily injury were previously together in the aggravated assault statute [former section 245, subdivision (a)(1)].... The Supreme Court interpreted [the] language [of former section 245, subdivision (a)(1)] as defining ‘only one offense' that could be committed in two different ways, explaining ‘assault by means of force likely to produce great bodily injury is not an offense separate from-and certainly not an offense lesser than and included within-the offense of assault with a deadly weapon.' [Citation.]... [¶] In 2011, the Legislature amended section 245, subdivision (a)(1), splitting it into two separate subdivisions. While assault with a deadly weapon remained in subdivision (a)(1), assault with force likely to cause great bodily injury was moved to newly created subdivision (a)(4). [Citation.] The purpose of the amendment was to make it easier in subsequent cases to determine whether a defendant's aggravated assault conviction under section 245, subdivision (a), involved an assault with a deadly weapon or assault with force likely to produce great bodily injury because certain recidivist provisions (i.e., the ‘Three Strikes' law) apply to prior convictions for assault with a deadly weapon but not prior convictions for assault with force likely to cause great bodily injury.” (People v. Cota (2020) 44 Cal.App.5th 720, 724-725 (Cota), rev. granted April 22, 2020, S261120.) The punishment for ADW and assault GBI remains the same. (§ 245, subds. (a)(1), (a)(4).)
In People v. Aguayo (2019) 31 Cal.App.5th 758, review granted May 1, 2019, S254554, our Supreme Court is considering whether assault GBI is a lesser included offense of ADW under the elements test. (See Cota, supra, 44 Cal.App.5th at p. 727, fn. 3.) In Aguayo the Court of Appeal held that assault GBI “is not a lesser included offense of assault with a deadly weapon because, although every [assault GBI] must be committed in a way that is likely to produce great bodily injury (either with or without a deadly weapon), there is a subset of assaults with deadly weapons-those committed with inherently deadly weapons-that are not necessarily likely to produce great bodily injury.” (Aguayo, supra, at p. 766.)
We need not attempt to resolve the “elements test” issue pending before the Supreme Court in Aguayo. We explain below that assault GBI is a lesser included offense of ADW under the accusatory pleading test.
The allegedly deadly weapon was a slab of granite, which is not inherently dangerous. “‘Some few objects, such as dirks and blackjacks, 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. [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. 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. Aledamat (2019) 8 Cal.5th 1, 6.) A noninherently dangerous object qualifies as a deadly weapon if it “‘is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
Since a slab of granite is not an inherently dangerous weapon, the People argue that “in order for appellant to be convicted of assault with a deadly weapon, the People had to prove that he used the granite slab in a way that was capable of causing and likely to cause death or great bodily injury. This is merely a different way of stating that appellant used force likely to produce great bodily injury.” The People note that, in People v. Brunton (2018) 23 Cal.App.5th 1097, 1107 (Brunton), the court concluded, “[W]hen based on a defendant's single act of using a noninherently dangerous object in a manner likely to produce great bodily injury, section 245, [subdivisions] (a)(1) and [(a)](4) are merely different statements of the same offense such that the defendant may not be convicted of violating both subparts of the subdivision.”
We agree with Brunton. By alleging in the information that appellant committed ADW and that the deadly weapon was a noninherently dangerous granite slab, the People impliedly alleged that appellant had used the granite slab in a manner likely to cause death or great bodily injury. Otherwise, the slab could not have qualified as a deadly weapon. Therefore, pursuant to the accusatory pleading test, assault GBI is a lesser included offense of ADW. Moreover, count 1 may reasonably be construed as impliedly charging assault GBI in the alternative. (See Brunton, supra, 23 Cal.App.5th at p. 1107.) Thus, the trial court did not err in instructing on assault GBI. Count 1 put appellant on notice that he could be convicted of this offense.
We reject appellant's claim that his “conviction for [assault GBI] cannot stand because [it] was based on an act (punching his Uncle) upon which appellant received absolutely no notice.” The alleged lack of notice is premised on the information's allegation that appellant assaulted Uncle with a granite slab, not his fists. Appellant is assuming that, in convicting him of assault GBI, the jury disregarded his throwing of the granite slab and considered only the preceding assault with his fists. This assumption is unwarranted. If the jury had considered only appellant's assault with his fists, they would have acquitted him of assault GBI and instead found him guilty of simple assault. The jury was instructed on simple assault as “a lesser included offense of Assault with Force Likely to Produce Great Bodily Injury.”
Sentence for Elder Abuse Must be Stayed
For the elder abuse conviction on count 2, the trial court sentenced appellant to prison for three years. The court ordered that the sentence run concurrently with the three-year prison term imposed on count 1 for assault GBI. Appellant claims, and the People concede, that section 654 prohibits punishment for both offenses because they arose from the same act or course of conduct - appellant's assault against Uncle. We agree. Section 654 provides, “[I]n no case shall [an] act or omission be punished under more than one provision.”
“[R]ather than... imposing concurrent sentences, when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence.... The sentencing court should stay execution of sentence pending completion of service of sentence upon the greater offense, with the stay to become permanent upon completion of that sentence.” (People v. Duff (2010) 50 Cal.4th 787, 796.)
Disposition
The judgment is modified to stay execution of the three-year concurrent sentence imposed on count 2, elder abuse. (§ 368, subd. (b)(1).) The stay shall remain in effect pending completion of service of the three-year sentence imposed on count 1, assault GBI. (§ 245, subd. (a)(4).) The stay shall become permanent upon completion of that sentence. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P. J., TANGEMAN, J.