Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. LA052389. Kathryne A. Stoltz, Judge.
Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Phillip Jonathan Schmidt, also known as Jonathan Schmidt and Jon Phillip Schmidt, appeals from a judgment entered upon his conviction by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Defendant admitted having suffered a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (a) through (i). The trial court sentenced defendant to an aggregate state prison term of nine years. Defendant contends that the trial court prejudicially erred when it failed to both answer the jury’s questions concerning the elements of the charged offense, and to instruct the jury on the lesser included offense of brandishing a weapon.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
On May 10, 2006, defendant entered the Firestone tire store in Van Nuys, where Denis Quiroz and Cristobal Moran were working. Defendant entered the bathroom in the customer service area. When he exited he appeared wet, as if he had showered. Afterward defendant went toward an employee locker room in a nonpublic area of the shop, talking to himself and acting “abnormal.” In the locker room, he began looking at uniforms.
Quiroz approached defendant and told him that he “need[ed] to go outside the shop.” Defendant responded by telling Quiroz that, “You better get out of here,” “before I fuck you up.” Quiroz called Moran to help. They told defendant to leave, or they would telephone the police. Defendant screamed, “You guys don’t know who you messing [sic] up. I’m going to fuck you guys up.” Defendant then left.
Five to 10 minutes later, defendant returned to the mechanics’ area with about a four-and-a-half-foot long wooden board (two-by-four), with multiple three-inch nails protruding from the end. Quiroz ran from the mechanics’ area to the counter in the customer service area, where he stood behind Moran. Defendant followed, screaming and shaking the two-by-four. Defendant was on the customer side of the counter as he tried hitting Moran with the board. He swung the two-by-four three times. The first time, he hit the counter but did not reach Moran. According to Quiroz, defendant came within a foot of hitting Moran, who had to back away to avoid the blow. Had Moran not moved, he would have “definitely” been struck. Defendant moved closer to the counter and swung the two-by-four two more times, failing to hit the counter or Moran.
According to Moran, the stick came within two feet of him.
Moran told defendant to leave, or he would call the police. Defendant cursed at the men and said, “I don’t care. You guys don’t know who you’re messing with.” Finally, defendant picked up a business card holder that was on the counter, threw it at Moran, striking him in the chest, and left. As defendant ran from the store, he tossed the two-by-four.
The police arrived five minutes later. Los Angeles Police Officer Gregory Houser detained defendant a block north of the Firestone store based on the physical description he had been given. Approximately 10 or 15 minutes later, Quiroz and Moran identified defendant. The two-by-four was never found.
DISCUSSION
I. Response to Jury Questions
The jury was instructed on assault with a deadly weapon in accordance with CALCRIM No. 875. During deliberations, it sent a note to the trial court asking, “How can we answer a question about the defendant’s ‘awareness of facts’ w/o speculating about his state of mind?” In informing counsel of the jury’s question, the trial court indicated its intention “to call the jurors in and the alternates and tell them that I really cannot answer this question, but that I’m going to reopen argument for an additional five minutes per side and allow the attorneys to present an additional five minutes of argument now that they’re aware of this particular question.” Both parties stated their agreement with the trial court’s intended course of action.
CALCRIM No. 875 as given provides: “The defendant is charged with assault with a deadly weapon. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would probably and directly result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person. [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or to gain any advantage. [¶] The terms application of force and applied force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done directly by causing an object to touch the other person. [¶] The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was. [¶] A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (Italics added.)
When the jury was called out, the foreperson indicated that the jury had a second question. The trial court returned the jury to the jury room to prepare and submit a note with additional questions. Three more questions were given to the trial court, as follows: (1) “Does the question imply intent of action or is it the action itself that would result in application of force?”; (2) What is the “definition of application of force by any action?”; and (3) “Clarify element [No.] 1” [that the defendant did the act with a deadly weapon that by its nature would directly and probably result in the application of force to a person] of the offense. The trial court told the attorneys that in light of the complexity of these questions, it would provide each of them with an additional 10 minutes to argue.
In the supplemental argument, the prosecutor told the jury that “[t]he People are not required to prove that the defendant actually intended to use force against anyone --against someone when he acted.”
Defendant contends that the trial court erred in failing to address the jury’s questions and exacerbated that error by failing to correct the prosecutor’s erroneous statement of law during the supplemental argument that, in essence, there was no intent element to the charged offense. “The end result of the prosecutor’s argument was that appellant could be guilty of the offense if he negligently swung the 2X4 in a manner that could have struck the victim. This was an erroneous theory of assault liability and should have been corrected by the court.” He argues that the trial court violated section 1138, which imposes on the trial court the duty to assist the jury to understand legal concepts. The trial court must do more than simply throw up its hands and say it cannot help.
The Attorney General contends that defendant forfeited these claims by failing to object to the trial court’s course of action and to the prosecutor’s argument. We agree.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” This statute requires that the trial court instruct ‘“on any point of law arising in the case,”’ when requested by a deliberating jury. (People v. Ross (2007) 155 Cal.App.4th 1033, 1047.) A court need not, however, always elaborate on instructions already given if they were “‘full and complete.’” (Ibid.)
“A defendant may forfeit an objection to the court’s response to a jury inquiry through counsel’s consent, or invitation or tacit approval of, that response.” (People v. Ross, supra, 155 Cal.App.4th at p. 1048; see also People v. Rogers (2006) 39 Cal.4th 826, 877; People v. Roldan (2005) 35 Cal.4th 646, 729 [“When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138”]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.) The rationale behind this forfeiture rule is that “it is questionable ‘whether a defendant should be permitted to sit back, await a jury verdict, and then assert error . . . .’” (People v. Jennings (1991) 53 Cal.3d 334, 384.)
Here, the jury asked a series of questions. Presumably believing that it had fully and correctly instructed the jury and that further instruction in response to the questions would not be beneficial, the trial court informed counsel of its intention to respond to the jury by allowing counsel to further argue on the requested issues. Defense counsel registered no objection and did not ask the trial court to follow some alternative course of conduct. Hence, the defendant’s claim that the trial court violated section 1138 has been forfeited.
Similarly, defendant forfeited his claim that the prosecutor misstated the law during the additional argument to the jury. When the prosecutor made the allegedly erroneous statement to the jury, defendant neither objected nor requested an admonition. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512 [claim of prosecutorial misconduct during closing forfeited unless the defendant objects and requests an admonition or demonstrates that doing so would have been futile or would not have cured the error].) Defendant makes no showing that objecting and requesting an admonition would have been futile or would not have cured any error.
While we need not reach the merits of defendant’s challenge to the prosecutor’s statement to the jury, at least in the context presented, the statement was not incorrect. The mental state for assault requires that the defendant intentionally commit an act, aware of facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result. The defendant need not be subjectively aware of the risk of a battery. (People v. Williams (2001) 26 Cal.4th 779, 787-788.)
In this case, defense counsel did more than simply fail to object to the trial court’s intended course of action. He expressly agreed to the plan. Defense counsel may well have been pleased with the opportunity to further argue to the jury knowing the specific questions with which the jury was struggling, believing it could be advantageous to his client. It is not often that counsel has such an opportunity. “‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 729, italics added.) Consequently, there was no trial court error under section 1138 as any possible error was cured by defense counsel’s express assent.
II. Failure to Instruct on Lesser Included Offense
The information alleged felonious assault with a deadly weapon “was committed by [defendant], who did willfully and unlawfully commit an assault upon CHRISTOBAL MORAN, with a deadly weapon, to wit, 2X4 WITH NAILS.”
When jury instructions were discussed, the court indicated that it was going to instruct the jury on simple assault as a lesser included offense. Defense counsel did not request any additional instructions.
Defendant now contends that the trial court erred in failing to instruct the jury sua sponte on misdemeanor brandishing a weapon, as a lesser included offense of assault with a deadly weapon under the accusatory pleading test. He argues that a two-by-four cannot be used to assault a person without brandishing it. Defendant further contends that we are required to accept this claim by virtue of our Supreme Court’s decision in People v. Wilson (1967) 66 Cal.2d 749, 764 (Wilson). He argues that failure to do so is an unconstitutional denial of fundamental fairnessand due process. These contentions are without merit.
A trial court must instruct the jury on general principles of law relevant to the issues raised by the evidence. (People v. Saddler (1979) 24 Cal.3d 671, 681.) This includes instruction sua sponte “on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation] but not when there is no evidence that the offense was less than that charged.” (People v. Breverman (1998) 19 Cal.4th 142, 154.) There must also be sufficient evidence to justify a conviction of the lesser offense. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) Mere speculation that the crime was less than that charged is insufficient to trigger the duty to instruct. (See People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823.) In general, “‘[d]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.’” (People v. Kaurish (1990) 52 Cal.3d 648, 696.)
A lesser offense is necessarily included in the charged offense only if it meets either the “‘elements’ test” or the “‘accusatory pleading’ test.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) The “elements test” is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.) The “accusatory pleading test” is satisfied “‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.”’” (Id. at pp. 288-289.) A greater offense cannot be committed without committing the lesser offense. (People v. Birks (1998)19 Cal.4th 108, 117.)
An assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another; an intent to commit a battery. (§ 240.) “To prove a violation of Penal Code section 245, subdivision (a), the prosecution must establish that a person was assaulted and that the assault was committed by the use of a deadly weapon or instrument or by means of force likely to produce great bodily injury.” (People v. Griggs (1989) 216 Cal.App.3d 734, 739-740.) The force used need not cause pain or physical injury, but is only the least unwanted touching. (People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4.)
Section 417 provides: “(a)(1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor . . . .” (See People v. Torres (1957) 151 Cal.App.2d 542, 544.)
It has long been held that brandishing is a lesser related offense of assault with a deadly weapon, rather than a lesser included offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 218; People v. Lipscomb (1993) 17 Cal.App.4th 564, 569; People v. Beach (1983) 147 Cal.App.3d 612, 626; People v. Orr (1974) 43 Cal.App.3d 666, 673; People v. Escarcega (1974) 43 Cal.App.3d 391, 398 [“Obviously an assault with a deadly weapon may be perpetrated without drawing or exhibiting it in a rude, angry, or threatening manner, or using it in a fight or quarrel”]; People v. Birch (1969) 3 Cal.App.3d 167, 176; People v. Leech (1965) 232 Cal.App.2d 397, 398; People v. Torres, supra, 151 Cal.App.2d at pp. 544-545; People v. Piercy (1911) 16 Cal.App. 13, 16.) The rationale for these decisions is that an assault with a deadly weapon can be committed without showing or drawing the weapon in a rude, angry or threatening manner, such as “by firing a gun through a coat pocket without either drawing or exhibiting the weapon and without then being engaged in a fight or quarrel.” (People v. Torres, supra, at p. 545.)
Defendant concedes that under the statutory elements test, brandishing “may not be a necessarily lesser included offense to Penal Code section 245[,] subdivision (a)(1).” However, he argues that under the accusatory pleading test, he could not have committed the greater offense of assault with a deadly weapon without necessarily committing the lesser offense of drawing and exhibiting a weapon because the information alleges the weapon was a two-by-four. He correctly points out that those cases concluding that brandishing is not a lesser included offense of assault with a deadly weapon have generally considered situations where the deadly weapon was a firearm. Defendant argues: “There is no abstract theory that would accommodate an attempt to strike the victim with the 2X4 without the [defendant] exhibiting the 2X4 in a threatening manner. For instance; the [defendant] cannot assault the victim from a sniper’s secreted position, as suggested relative to a firearm; nor can he attempt to strike the victim while secreting the 2X4 within his pocket. By the physical nature of the 2X4, it is necessary to exhibit the weapon when it is used to assault the victim.” We disagree.
While most of the cases holding that brandishing is not a lesser included offense of assault with a deadly weapon involve firearms, not all do. For example, People v. Escarcega, supra, 43 Cal.App.3d at page 394, involved the use of a knife in an assault. The Court of Appeal noted that assault with a knife could be accomplished without drawing or exhibiting it in a rude, angry or threatening manner, such as by “a stealthy prison stabbing.” (Id. at p. 398.)
It is similarly possible to commit an assault with a two-by-four without violating section 417. For example, the defendant can sneak up behind a victim with a two-by-four secreted under a coat and hit the victim, without the victim ever having advance warning of the attack. Defendant argues that even if a victim is unaware of an attack, in the moment before a strike with a 2X4, it must be displayed in an angry, rude or threatening manner. He cites People v. McKinzie (1986) 179 Cal.App.3d 789, 793-794 (McKinzie) which states that brandishing does not require that the victim be aware that the defendant is displaying the weapon. But McKinzie also states that “it is enough that the brandishing be in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or brandisher need help, or might think a brawl is in the making which he might join. The thrust of the offense is to deter the public exhibition of weapons in a context of potentially volatile confrontations. The victim’s unawareness of the weapon does little to mitigate the danger inherit in such a situation.” (Id. at p. 794.)
We need not decide whether we agree with McKinzie’s conclusion that brandishing does not require the victim’s awareness of the display of the deadly weapon. For McKinzie makes clear that under its interpretation of what constitutes brandishing, it is still possible to commit an assault with a two-by-four without brandishing the weapon. This might occur, for example, if the defendant sneaks up in a nonpublic place, behind the victim, who is unaware of the attack, and hits him with a two-by-four. While this is still an assault with a deadly weapon, it is not under McKinzie brandishing a weapon because is not committed in a public place where “some third party happening along might get the idea that either the victim or brandisher needs help, or might think a brawl is in the making which he might join.” (McKinzie, supra, 179 Cal.App.3d at p. 794.)
The information here is not worded to “‘“include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.”’” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.) It charges defendant with assault with a two-by-four. It says nothing about the manner or method of the commission of the offense which makes clear that the assault could not occur without brandishing the two-by-four.
Even if brandishing a two-by-four is a lesser included offense of assault with a deadly weapon under the accusatory pleading test, the trial court here still was not required to instruct on brandishing sua sponte. That duty arises only if there is a question as to whether all of the elements of the charged offense were present. (People v. Breverman, supra, 19 Cal.4th at p. 154.) There was no evidence that the offense was less than that charged, because there was no evidence defendant did not intend to touch the victim with the weapon. Defendant left the Firestone store threatening to “fuck you up.” He then returned five minutes later carrying a two-by-four with three-inch nails protruding from the end. He chased Quiroz into the customer section of the store and swung the board at Moran, missing only because Moran backed away. Defendant then moved closer to the counter and swung the two-by-four at Moran two additional times. This is overwhelming evidence of defendant’s intent to touch Moran. Nothing suggests that defendant only intended to frighten Moran. Thus, there was no evidentiary basis for instructing on a lesser offense other than simple assault, as done by the trial court.
Defendant asserts that we act beyond our jurisdiction by failing to follow the dictum by our Supreme Court in Wilson, supra, 66 Cal.2d 749, which stated: “‘An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ [Citation.] Defendant did not shoot or strike [victim]; had the jury been instructed on section 417 the evidence would have justified the conclusion that defendant committed a violation of that section rather than the assault found.” (Id. at p. 764.) As stated in our opinion in People v. Steele, supra, 83 Cal.App.4th at page 219, “the Supreme Court implied -- but did not directly hold -- that brandishing was a lesser included offense to assault with a firearm. That holding has no prior case support, and only scant subsequent support.” We therefore decline to follow Wilson and instead base our decision on the valid precedent of People v. Steele.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P.J., ASHMANN-GERST, J.