Opinion
B295941
06-02-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN RODRIGUEZ, Defendant and Appellant.
Jamie Lee Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin, and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA108728) APPEAL from a judgment of the Superior Court of Los Angeles County. Richard R. Romero, Judge. Affirmed. Jamie Lee Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin, and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Kevin Rodriguez of assault likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and found true the allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant admitted a prior conviction as a strike, serious felony, and prior prison term (§§ 667, subd. (a)(1), 667.5, subd. (b), 1170.12). The trial court sentenced defendant to a total term of 16 years in state prison, consisting of the high term of four years, doubled for the strike, plus five years for the prison prior and three years for the great bodily injury allegation.
All further statutory references are to the Penal Code unless otherwise indicated. --------
Defendant timely filed a notice of appeal. He contends that his conviction must be reversed because (1) the trial court prejudicially erred when it denied his request to instruct the jury on defense of property; and (2) the trial court erroneously failed to instruct the jury sua sponte on simple assault as a lesser included offense.
We affirm.
BACKGROUND
The People's Evidence
In 2017, defendant rented a room in Luis Chairez's (Chairez) home. Defendant's room was upstairs, about two feet to the right of the top of the stairway. In November 2017, the relationship soured because defendant had not paid rent. Defendant started to become aggressive and threatened to push Chairez down the stairs.
On December 15, 2017, defendant and Chairez argued about defendant's move-out date. Defendant stood inside the doorway to his room and Chairez stood outside the doorway. The argument escalated and they began to insult and yell at each other.
Chairez asked defendant to go outside and began to walk down the stairs. Chairez had one foot on the stairs and defendant pushed his shoulder "a little bit hard, not too hard." Chairez fell down the L-shaped stairway. He hit his head and landed on his hip. Defendant and Chairez's son called 911. Defendant told the 911 operator that Chairez was aggressive and had "rushed" him with a tool in his hand.
Police and paramedics arrived. Chairez told the police officer that defendant had pushed him down the stairs. Defendant said that Chairez had "charged" at him, so he blocked Chairez, pushed him several feet away from the door, and slammed the door. Seconds later, he heard a loud thud. Later that day, defendant told two other tenants that he and Chairez had argued about rent and that he had shoved Chairez in the back, pushing him down the stairs.
Chairez's hip and pelvis were fractured. He had surgery, stayed in the hospital for a week, and was in a nursing home for another week. He continued to have difficulty walking.
Defense Evidence
Defendant testified in his own defense. He stated that he was current with his rent. There was some tension between him and Chairez.
On December 15, 2017, Chairez confronted defendant outside of his home and told him that he had to move out earlier than defendant expected. Chairez told him, "'when you come back from work, . . . all your stuff will be in the curb.'" According to defendant, Chairez had a tool in his hand at the time of this confrontation about the rent.
Defendant went inside and up to his room, partly because "[n]obody likes being talked [to] like that, [e]specially when you give them no reason to talk like that." Chairez then entered the doorway of defendant's room, continued to argue, and knocked a few papers off of the dresser. At this point, Chairez did not have a tool in his hand. Chairez refused to leave after defendant asked him several times. Defendant pushed Chairez out of his room because he was "not gonna argue with a[n] older guy, you know. No point." He pushed him just enough to close the door and closed the door. Three to five seconds later, he heard Chairez yelling for his wife. Defendant thought Chairez was "faking it."
When asked what he was thinking at the moment he pushed Chairez out of the room, defendant replied, "Just pushed him out and call my work that I wasn't gonna be able to go. I had to make sure it was gonna happen. I was looking for a place to go." He denied that he intended to cause great bodily harm, stating that he just wanted Chairez "out [of his] room."
Defendant told the other tenants that he pushed Chairez, but he did not say that he pushed him down the stairs.
An investigator testified that in September 2018, the carpet at the top of the stairs was old, "raised up a bit," and loose.
Defendant's pastor from a residential program for parolees testified that defendant was receptive to his teachings regarding domestic violence, specifically dealing with anger. Defendant attended religious services on Sundays.
DISCUSSION
I. Failure to instruct on defense of property
Defendant contends that his conviction should be reversed because the trial court improperly denied his request for a jury instruction on defense of property.
A. Relevant facts
Defense counsel requested that the jury be instructed with CALCRIM No. 3476 on the right to defend property. He argued that substantial evidence supported the instruction because Chairez had a wrench earlier, said he was going to put defendant's property on the street, went to defendant's room, and threw down some papers. Violating defendant's space may have made defendant feel threatened.
The prosecutor argued that there was nothing threatening about Chairez holding a wrench while they were outside and there was no immediate threat to defendant's property.
The trial court commented that the testimony showed that Chairez threatened to move defendant's property while defendant was at work, and defendant felt that it was not necessary to argue with an old man. Ultimately, the trial court denied defendant's request on the grounds that there was no substantial evidence of an immediate threat to defendant's property.
B. Relevant law
A trial court has a duty to instruct on a defense if it is supported by substantial evidence, and it may properly refuse to instruct on the defense if it is not. (People v. Burney (2009) 47 Cal.4th 203, 246.) In deciding whether there is substantial evidence to support an affirmative defense instruction, "the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
CALCRIM No. 3476 provides, in relevant part: "The owner . . . of personal property may use reasonable force to protect that property from imminent harm." It defines "reasonable force" as "the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm." Regarding the imminence of the harm, "'[f]ear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice.'" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
Thus, whether the trial court erred in not instructing the jury on defense of property turns on whether defendant offered substantial evidence that, if believed by the jury, defendant believed that his property was in imminent harm. (People v. Salas, supra, 37 Cal.4th at p. 983.)
C. Analysis
Applying these legal principles, we conclude that the trial court did not err in denying defendant's request for the defense of property instruction because there was insufficient evidence to support such an instruction.
As the trial court noted, there was no evidence that defendant's personal property was in danger of imminent harm. According to defendant's testimony, when he and Chairez were outside, Chairez threatened to move defendant's property to the curb while defendant was at work. Instead of going to work, defendant walked away and went to his room, partly because he did not want to be spoken to that way. Chairez followed him and continued to argue, asking why he walked away and telling him to leave. Chairez stood partially in the doorway and knocked some papers off of defendant's dresser. Defendant pushed Chairez out of his room because he did not want to argue with an "older guy." When asked what he was thinking at the moment he pushed Chairez out of the room, defendant replied, "Just pushed him out and call my work that I wasn't gonna be able to go. I had to make sure it was gonna happen. I was looking for a place to go." He denied that he intended to cause great bodily harm, stating that he just wanted Chairez "out [of his] room."
If defendant's testimony was believed by the jury, it would not reasonably support a finding that there was a danger of imminent harm to defendant's property. Defendant never stated that he went to his room to protect his property from imminent harm; rather, he went to his room because he felt disrespected, he did not want to argue with an older man, and he wanted to look for another place to live.
Even if defendant went to his room to protect his property from being moved later that day while he was at work, a fear of future harm is insufficient to support the instruction. Moreover, his presence in the room was sufficient to prevent removal of his personal property. After all, Chairez did not attempt to gather defendant's things in order to put them outside. Rather, according to defendant's testimony, Chairez continued telling defendant to leave and disrespectfully knocked over a few papers.
Eventually, defendant pushed Chairez out of the room because he did not want to argue anymore and he wanted Chairez out of his space. He never said that he believed Chairez was immediately going to damage or move his property.
Based upon all of this evidence, no reasonable jury could find that defendant's property was in danger of imminent harm when he pushed Chairez. Thus, the trial court properly refused to give this instruction.
D. Harmless error
Even if the trial court had erred in declining to give the requested instruction, which it did not, any error was harmless, under any standard. (People v. Salas, supra, 37 Cal.4th at p. 984.) There was no evidence that defendant's property was in danger of imminent harm. There was no evidence that Chairez made any immediate move to damage or move defendant's property. Thus, it is beyond a reasonable doubt that a jury, had it been instructed on defense of property, would not have found that defendant was reasonably defending his property when he pushed Chairez.
II. Failure to instruct the jury with simple assault
Defendant contends that the trial court had a sua sponte duty to instruct the jury with simple assault, a lesser included offense of assault likely to cause great bodily injury.
A. Relevant law
A trial court has a duty to instruct "on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the [trial] court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Manriquez (2005) 37 Cal.4th 547, 584 ["[a] trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense"].) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman, supra, at p. 162.)
Assault is a lesser included offense of assault likely to cause great bodily injury. (§§ 240, 245, subd. (a)(4); People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) Assault with force likely to produce great bodily injury is a general intent, rather than a specific intent, crime. (People v. Martinez (1973) 31 Cal.App.3d 355, 359.) The defendant must intend an act, the natural consequence of which is the application of force on the person of another. (People v. Covino (1980) 100 Cal.App.3d 660, 667.)
B. Analysis
Applying these principles, we conclude that there was no substantial evidence of simple assault but not assault likely to cause great bodily injury. It is undisputed that defendant pushed Chairez at the top of the stairs. Even if the jury believed that the push was "not too hard" or that defendant pushed Chairez just out of the doorway, a reasonable jury could not find that defendant only committed simple assault when defendant pushed Chairez at the top of the stairs, while Chairez had one foot already on the stairs. Defendant's argument notwithstanding, a natural consequence of defendant's push was that Chairez would fall down the stairs and suffer great bodily injury.
Contrary to defendant's assertion, assault likely to cause great bodily injury does not require an intent to cause great bodily injury. Nor does it require significant force. Rather, whether such force "would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (People v. McDaniel, supra, 159 Cal.App.4th at pp. 748-749.)
Here, defendant pushed Chairez from inside the doorway to outside the doorway. Thus, he pushed him with enough force to move him at least one or two feet back. Such force would likely cause Chairez to lose balance and fall. Due to the two-to-three foot proximity of the stairs, even a "not too hard" push would likely cause great bodily injury. It follows that there was no substantial evidence from which a jury could convict defendant of assault, but not assault likely to cause great bodily injury. The trial court rightly did not instruct the jury with simple assault.
C. Harmless error
Even if the trial court had erred in failing to instruct the jury sua sponte with assault, any error would have been harmless. It is not reasonably probable that defendant would have obtained a more favorable result had the instruction been given. (People v. Beltran (2013) 56 Cal.4th 935, 955; People v. Watson (1956) 46 Cal.2d 818, 836.)
As set forth above, there was no evidence to support a conviction for simple assault. And the evidence amply supports defendant's conviction for assault likely to cause great bodily injury. Defendant pushed Chairez at the top of the stairs, causing him to fall down the stairs and suffer serious injuries. And two other residents in the home testified that defendant told them that he pushed Chairez down the stairs. Moreover, defendant's own testimony does not reduce his criminal liability—he admitted to pushing Chairez in a manner that would likely cause great bodily injury. Under these circumstances, it is not reasonably probable that the jury would have convicted defendant of assault and not assault likely to cause great bodily injury.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ