Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FW802076, Michael A. Sachs, Judge.
IRION, J.
José Luis Palma challenges his conviction of simple assault. (Pen. Code, § 240.) Palma contends the trial court erred when, over his objection, it instructed on simple assault as a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)) of which he was acquitted. Since the error benefitted Palma, he may not complain on appeal. We therefore affirm the judgment.
All subsequent statutory references are to the Penal Code.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
The assault at issue on appeal arose out of a vehicle chase involving Palma and his former brother-in-law, Albert Aviles, which was part of a larger family feud. At trial, Palma and Aviles (and other witnesses) testified to conflicting versions of the events.
According to Aviles, as he and Palma were driving alongside each other, he asked Palma "what the hell was his problem, " and Palma answered, "Don't f***ing worry about it." Aviles testified that Palma then sharply turned his vehicle into Aviles's vehicle, forcing it off the road. Aviles slammed on his brakes and came to a stop, narrowly avoiding a collision with a parked car.
According to Palma, he saw Aviles's vehicle accelerating towards him and then felt Aviles's vehicle collide with his vehicle several times. Palma testified that he was so "scared" that Aviles's vehicle would not stop hitting his vehicle that he sharply turned his vehicle into Aviles's to force it off the road.
Palma and Aviles (and other witnesses) also testified to conflicting versions of what happened after they exited their respective vehicles. Since the details are not pertinent to the issues on appeal, we note simply that the record contains evidence that Palma and Aviles exchanged harsh words, Palma repeatedly struck Aviles with a wooden bat, and Aviles suffered wounds requiring 18 stitches to his scalp.
B. Trial Court Proceedings and Sentencing
Palma was charged with three counts: (1) assault with a deadly weapon, a motor vehicle (§ 245, subd. (a)(1)); (2) making criminal threats (§ 422); and (3) assault with a deadly weapon, a wooden bat (§ 245, subd. (a)(1)). As to count 3, the information also alleged Palma inflicted great bodily injury on Aviles. (§ 12022.7.)
Over Palma's objection, the trial court instructed the jury on simple assault (§ 240) as a lesser included offense of assault with a deadly weapon that was charged in both counts 1 and 3.
The jury returned a verdict of guilty of simple assault, as a lesser and necessarily included offense of assault with a deadly weapon, on count 1; not guilty of making criminal threats on count 2; and guilty of assault with a deadly weapon on count 3. The jury found true the allegation that Palma personally inflicted great bodily injury as to count 3.
For the conviction on count 3, the trial court sentenced Palma to three years in prison (§ 245, subd. (a)(1)), plus a consecutive term of three years for the great bodily injury enhancement (§ 12022.7, subd. (a)). The court suspended execution of the prison sentence and granted probation on the condition that Palma serve 365 days in county jail. For the conviction on count 1, the court sentenced Palma to county jail for 180 days (§ 241, subd. (a)), with credit for time served.
II
DISCUSSION
A. The Trial Court Erred by Instructing the Jury on Simple Assault as a Lesser Included Offense of Assault with a Deadly Weapon Charged in Count 1
Palma contends the trial court committed error when, over his objection, it instructed the jury on simple assault as a lesser included offense of assault with a deadly weapon charged in count 1. According to Palma, if he was guilty of any type of assault under count 1, it was necessarily assault with a deadly weapon, not simple assault, because the act constituting the assault involved use of his motor vehicle. We agree.
An instruction on a lesser included offense must be given only when there is substantial evidence to support a conviction of the lesser included offense. (E.g., People v. Mendoza (2000) 24 Cal.4th 130, 174.) A trial court need not instruct a jury on a lesser included offense if the evidence is such that the defendant, if guilty at all, must be guilty of the charged offense. (People v. Kelly (1990) 51 Cal.3d 931, 959.) Simple assault — i.e., "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (§ 240) — is a lesser included offense of "assault upon the person of another with a deadly weapon or instrument other than a firearm" (§ 245, subd. (a)(1)). (People v. Helbing (1882) 61 Cal. 620, 622; People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) Thus, a jury should not be instructed on simple assault if, based on the evidence presented at trial, the jury could find a defendant either guilty of assault with a deadly weapon or not guilty at all, but could not find the defendant guilty only of simple assault. (People v. Page (2004) 123 Cal.App.4th 1466, 1474 (Page).)
Here, the act that was the basis of the assault charged in count 1 was Palma's turning of his vehicle into Aviles's vehicle. Aviles testified that Palma turned his vehicle into Aviles's vehicle and forced him off the road. Palma admitted he turned his vehicle into Aviles's, but stated he did so out of fear and to stop Aviles from hitting his vehicle. The prosecutor argued Palma "willingly and on purpose turned his wheel to the left to hit [Aviles's] car" and used his own vehicle "as a battering ram to force [Aviles] to the other side." Palma's counsel argued that Palma was acting in self-defense when he turned his vehicle into Aviles's vehicle because "[h]e just got hit by another car and thought he was possibly going to die." Thus, if Palma committed an assault on Aviles, as alleged in count 1, it necessarily involved use of Palma's vehicle.
Moreover, Palma's vehicle would constitute a deadly weapon on the facts of this case because it was moving when Palma turned it into Aviles's vehicle. (See People v. Russell (2005) 129 Cal.App.4th 776, 785 (Russell) [automobile weighing several thousand pounds and underway on street constituted deadly weapon because it could seriously injure or kill any person it struck]; People v. Wright (2002) 100 Cal.App.4th 703, 705, 724-725 [affirming convictions of assault with deadly weapon when defendant drove vehicle close to victims to scare them].) This, in turn, means that on the evidence presented at trial Palma was either guilty of assault with a deadly weapon as charged in count 1 or not guilty at all, because "there is no way that driving a car toward a person can constitute simple assault but not assault with a deadly weapon or force likely to cause great bodily injury." (People v. Golde (2008) 163 Cal.App.4th 101, 117 (Golde).) Therefore, the trial court should not have instructed the jury on simple assault as a lesser included offense of assault with a deadly weapon as charged in count 1. (Ibid.; Page, supra, 123 Cal.App.4th at p. 1474.)
B. The Instructional Error Is Not Reversible Because It Did Not Harm Palma
Palma also contends that the trial court's error in instructing the jury on simple assault as a lesser included offense of assault with a deadly weapon on count 1 requires reversal of the conviction on that count. According to Palma, "[i]f the instruction on simple assault had not been given, the jury would have been forced to choose between a conviction of assault with a deadly weapon and acquittal on count 1"; and because of the sharp conflict in the testimony, he "might have been acquitted on count 1, or at least obtained a mistrial because of the jury's inability to reach a unanimous verdict." We disagree.
We may reverse a criminal conviction for instructional error only if the error resulted in a miscarriage of justice harmful to the defendant. (Cal. Const., art. VI, § 13; People v. Moye (2009) 47 Cal.4th 537, 557-558; People v. Dieguez (2001) 89 Cal.App.4th 266, 277-278.) Courts repeatedly and specifically have held that there is no such reversible error where, as here, the evidence indicates that the defendant, if guilty at all, is guilty of assault with a deadly weapon, but the trial court erroneously instructs on simple assault as a lesser included offense and the defendant is convicted of simple assault. (People v. Cota (1942) 53 Cal.App.2d 455, 457-458 (Cota); People v. Alderson (1930) 105 Cal.App. 202, 204-205; People v. Washburn (1921) 54 Cal.App. 124, 125-127 (Washburn).) In these circumstances, the defendant may not obtain a reversal of the conviction because the defendant "was benefited rather than prejudiced by th[e] instruction which, although it should not have been given, was too favorable to him." (Cota, at p. 458.)
This case is indistinguishable from Washburn, supra, 54 Cal.App. 124. Palma, like Washburn, was charged with assault with a deadly weapon but convicted of simple assault. Like the argument Palma makes on this appeal, Washburn argued that "the evidence 'shows clearly that if the defendant was guilty of anything at all he was guilty of assault with a deadly weapon and nothing less. There is no evidence in the records of this case to show that the defendant was guilty of simple assault.' " (Id. at p. 125.) Similar to Palma's admission and defense here, Washburn admitted he struck the victim with a shovel " 'and his only defense for the doing of that act was that it was done in self-defense.' " (Ibid.) Finally, as Palma does on appeal, Washburn complained that the trial court "committed grievous error by instructing the jury" on simple assault as a lesser included offense of assault with a deadly weapon and sought reversal based on that error. (Ibid.)
After thus stating the case, the Washburn court acknowledged the rule that it is error for a court to instruct on a lesser included offense when there is no evidence tending to prove an offense less than the one charged. (Washburn, supra, 54 Cal.App. at p. 125.) The court held, however, that "such error is not prejudicial and does not justify the lower court in granting a motion for a new trial or the appellate court in reversing the judgment." (Ibid.) The court explained:
"Of course, the crime of assault is included in the offense charged in the information herein, and since there was evidence of the greater offense, necessarily there was of the lesser. If the jury had found the defendant guilty of assault with a deadly weapon it could not be said that it was not supported and he would not complain on this ground. His position really amounts to a criticism of the action of the jury in rejecting one of the serious elements of the crime charged and rendering a more favorable verdict than the record warranted. For we must assume that the jury believed that he was not justified in making the assault and that if said instruction had not been given they would have found him guilty as charged. [Citation.] There can be no presumption that any of the jurors had any reasonable doubt of the guilt of the defendant or that if said instruction had not been given, a verdict of not guilty or a disagreement would have resulted. We cannot impute any misconduct or want of integrity to any of the jurors, and we must hold that, while believing the defendant guilty of the greater offense, they found some circumstance of mitigation that inclined them to exercise this clemency. At any rate, it cannot be said that the error was prejudicial or resulted in a miscarriage of justice." (54 Cal.App. at pp. 126-127.)
The court therefore affirmed the conviction of simple assault. (Id. at p. 129.)
Our Supreme Court has approved and employed the rationale of Washburn, supra, 54 Cal.App. 124. In People v. Powell (1949) 34 Cal.2d 196 (Powell), where the trial court found the defendant guilty of manslaughter even though the evidence showed he was guilty of second degree murder, the court stated:
"It cannot be doubted that a trier of fact has and often exercises the power, because of obvious extralegal factors or for no apparent reason, to find a defendant guilty of a lesser degree or class of crime than that shown by the evidence. Furthermore, even if it be assumed that the trier of fact erred here when [it] found defendant guilty only of manslaughter, defendant cannot now invoke reversal on an error which is favorable to him. [Citations.] An appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted." (Powell, at pp. 205-206, fn. omitted.)
More recently, a plurality of the Supreme Court cited Powell in support of the rule that "in the absence of prejudice, a defendant may not complain of error favorable to the defendant, including the giving of correct, but inapplicable, instructions and return of a verdict of an offense less than that which the evidence shows." (People v. Lee (1999) 20 Cal.4th 47, 57, italics added.)
We are not persuaded by Palma's argument that the rule articulated in Powell, supra, 34 Cal.2d 196, 205-206, does not apply here because he is not challenging the constitutional sufficiency of the evidence to support his conviction of a lesser included offense. (See, e.g., Jackson v. Virginia (1979) 443 U.S. 307, 319 [evidence sufficient if, after viewing evidence in light most favorable to prosecution, anyrational trier of fact could have found essential elements of crime beyond a reasonable doubt].) The defendant in Powell did not contend the evidence was insufficient to support his conviction of a lesser included offense, either. Instead, he "urge[d] that the trial court did not have 'the power to render a verdict of manslaughter where the only evidence presented tended to indicate that the defendant was guilty of murder in the second degree or of no crime whatsoever.' " (Powell, at p. 205.) Palma makes a similar argument here — he contends that without the erroneous instruction on simple assault "the jury would have been forced to choose between a conviction of assault with a deadly weapon and acquittal" and, based on the evidence at trial, "only these choices should have been given the jury." Thus, Palma's claim of error is the same type of claim our Supreme Court rejected in Powell.
Also unpersuasive is Palma's argument that the rule articulated in Powell, supra, 34 Cal.2d 196, 205-206, does not apply here because the evidence establishing assault with a deadly weapon on count 1 was neither undisputed nor indisputably accepted by the jury. Although the evidence pertaining to count 1 was not undisputed, the view of the evidence the jury must have accepted is that Palma assaulted Aviles with his motor vehicle. Palma admitted at trial that he intentionally drove his vehicle into Aviles's vehicle, and that was the only act the prosecutor argued constituted the assault with a deadly weapon charged in count 1. Thus, to return a verdict of guilty of simple assault on count 1, the jury must have found Palma committed that act. Driving a motor vehicle towards the victim in an attempt to injure the victim, however, constitutes assault with a deadly weapon as a matter of law. (Golde, supra, 163 Cal.App.4th at p. 117; Russell, supra, 129 Cal.App.4th at p. 782.) The only reasonable explanation for the conviction of simple assault on count 1 is that the jury believed Palma was guilty of assault with a deadly weapon on that count but, "because of what technically may be extralegal considerations, such as mercy, tempered the harsh application of the law." (Powell, at p. 207; see also Cota, supra, 53 Cal.App.2d at pp. 457-458 [having found defendant guilty of simple assault, jury must have concluded he inflicted knife wound on victim but decided, based on erroneous lesser included offense instruction, to deal more leniently with him than was warranted by evidence and convict him of simple assault rather than assault with a deadly weapon].)
In short, having benefited from the jury's "exercise [of] clemency" (Washburn, supra, 54 Cal.App. at p. 127), Palma "is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty... according to that view of the evidence which, it indisputably appears, the [jury] accepted" (Powell, supra, 34 Cal.2d at p. 206).
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.